Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: 2022 03 29 COURT FILE No.: Windsor 20-1325

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

ENOCH VILLANUEVA

Before: Justice S. G. Pratt

Heard on: 10, 17 January 2022 Reasons for Judgment released on: 29 March 2022

Counsel: Iain Skelton, for the Crown Daniel Topp, for the Defendant

Pratt J.:

Reasons for Judgment

[1] Enoch Villanueva, hereinafter the Defendant, is charged with one count of aggravated assault on Karan Mahal. The Crown alleges that in the course of an altercation with Mahal (hereinafter the Complainant) the Defendant bit the end of the Complainant’s finger off. The Defendant admits biting the Complainant’s finger as alleged, but says he was acting in self-defence when he did. The Crown says he wasn’t and should be convicted. These reasons explain why I agree with the Crown. The Defendant will be found guilty.

Admissions

[2] The following admissions were made at the outset of trial: date, identity, and jurisdiction were not in issue. Further, photographs, medical records, and a surveillance video were filed on consent. Finally, it was admitted that the injury suffered by the Complainant equated to a disfigurement pursuant to s. 268 of the Criminal Code.

[3] As I stated, the main issue in this case is self-defence.

The Evidence

[4] Much of the evidence about what happened on the 28th and 29th of June 2020 is not in dispute. It is agreed that on the afternoon of the 28th, the Defendant, Complainant, and others attended a party at a residence in Leamington. The party was in honour of the Complainant’s engagement to the Defendant’s sister. It was attended by family and friends. While there was some consumption of alcohol at the party, no one was obviously intoxicated. The party broke up around 8pm. The Complainant and his friend, Robert Huynh, planned to drive back to Windsor together with Huynh’s wife. The Defendant went with them.

[5] Once back in Windsor, the group ordered pizza. It was outside the pizza shop that the altercation that gives rise to the charge before me took place. The result of that altercation was the Defendant biting off and spitting out the tip of the Complainant’s left little finger.

[6] While this broad recounting of the events of that night are not disputed, the specifics are. Individual actions and motivations were testified to by the parties. It is this detailed evidence that I consider in determining the outcome of this case.

Issues

[7] The Crown has conceded two important points. First, it conceded there is an air of reality to the Defendant’s claim of self-defence. Taking the defence evidence at its highest, I agree.

[8] Second, it conceded the test in s. 34(1)(a) has been met. In the sense that force was being exchanged between the two, the Crown has conceded that the Defendant believed force was being used against him by the Complainant.

[9] This leaves two issues for me to determine in this case:

(1) Did the Defendant commit the act that constituted the offence (the biting) for the purpose of defending or protecting himself from a use of force? (2) Was the act committed by the Defendant reasonable in the circumstances?

[10] For each issue, the Defendant bears no burden of proof. He does not need to prove to any standard that he was acting in self-defence. Instead, the Crown must disprove that claim, and it must do so beyond a reasonable doubt. If after I assess all the evidence before me I am left in doubt, the claim of self-defence will have succeeded and I must find the Defendant not guilty.

Issue 1: Did the Defendant commit the act that constituted the offence (the biting) for the purpose of defending or protecting himself from a use of force?

[11] To answer this issue, I must consider the events that led up to the altercation, as they provide necessary context for what followed.

[12] The Complainant testified that he and Huynh went to the engagement party. They stopped to pick up the Defendant on the way. According to the Complainant, the Defendant got into a verbal altercation with Huynh though nothing came of it. At the party, the Complainant admitted to having 3-4 drinks over approximately 3 ½-4 hours. He said the Defendant also drank but that he did not keep count. As Huynh was the designated driver, he did not have any alcohol.

[13] All were getting along at the party, but the Defendant kept asking the Complainant to “roll” with him. This term refers to sparring in the style of Brazilian Jiu Jitsu. The Complainant testified that while he had rolled with the Defendant in the past, he did not think it was appropriate to do so when they were guests in someone’s home. He declined the Defendant’s invitation. He saw the Defendant ask a female at the party to roll with him as well.

[14] After the party, the Complainant departed with Huynh and Huynh’s wife. Unexpectedly, the Defendant got in their vehicle as well. The four drove to Windsor, arriving at the Defendant’s sister’s house on Marion Street between 9:30-10:00pm. The Complainant said he wanted to go to sleep, but others in the group wanted to continue socializing. They ordered pizza and went to a nearby 7/11 to get pop. All the while, the Defendant continued to ask the Complainant to roll.

[15] Eventually, the Complainant relented and agreed to one round of rolling. It took place in the house. The Complainant moved furniture out of the way beforehand. The Defendant grabbed his arm and said, “I got you bitch”. This frightened the Complainant, who jerked his arm away. This caused the Defendant to fall to the floor, striking his head. The Defendant immediately lost consciousness.

[16] When the Defendant awoke moments later, he went with the Complainant and Huynh to get the pizza. On the way, the Complainant said the Defendant was verbally aggressive with both of them. He called the Complainant vulgar names and pointed out that, unlike the Defendant, they did not have a gold medal in jiu jitsu. The Complainant testified that he felt embarrassed by the Defendant’s conduct and tried to ignore it.

[17] At the pizza restaurant, only one of the group was permitted inside because of pandemic restrictions. Huynh remained inside while the Complainant and Defendant waited outside. The Defendant continued yelling at the Complainant. The Complainant told the Defendant “you tried to kick me” and demonstrated a kicking motion. The Defendant responded with a hard kick to the Complainant’s leg. Thus began a physical confrontation.

[18] The Complainant admitted to throwing punches. He said the Defendant grabbed his legs and tried to take him to the ground. He was able to turn him over and get on top of the Defendant. He held the Defendant’s hands. At that point, Huynh and the pizza shop worker came outside. The worker said he was going to call police. The Complainant told him he didn’t need to as the incident was over. He started to get off the Defendant. The Defendant took hold of the Complainant’s legs and flipped him over. He sat on the Complainant’s chest and tried to strike the Complainant. As before, the Complainant tried to hold the Defendant’s hands but this time he was unsuccessful. He tried to push the Defendant off him. He then heard a popping sound and saw blood. The Defendant got up and the Complainant realized he was missing part of his left little finger. He asked Huynh to help find his finger. They located it under a garbage bin.

[19] The Defendant, meanwhile, was laughing and continuing to call the Complainant names. He walked away but soon returned saying he didn’t have his phone. He went back to the Complainant and took him to the ground again. On top of the Complainant, he put his thumbs in the Complainant’s eyes. At that point, Huynh pulled the Defendant off. The Defendant left the area. Police and ambulance soon arrived.

[20] The Complainant did not identify the Defendant as the person responsible for his injury. Instead, he told them of a random stranger who came up to him and started fighting with him. When asked why, he said his concern was getting his finger reattached. On that point, the Complainant said that after seeing the tip of his finger under a garbage bin, he never saw it again. It was not reattached.

[21] Several photos were filed. Exhibit 2 was a collection of photos of the Complainant taken at the scene and in hospital. Among these photos is one of a person holding what appears to be the tip of a finger. The photos also show the Complainant with his hand bandaged, and with blood on his clothing, legs, and feet. Exhibit 3 is two more photos of his injured hand. Exhibit 4 is two photos of the Complainant’s face. One shows the left side of his face. His left eyeball is clearly very bloodshot. The other shows the right side of his face with redness in the area between the eye and his sideburn/beard. Exhibit 5 is a collection of photos, including one of the Complainant’s face showing what is claimed to be an abrasion on his right eyelid, and others showing abrasions on his legs.

[22] I am advised that all of these photos were taken either shortly after the incident, or in the days that followed.

[23] In cross-examination, the Complainant confirmed that he had an “ok” relationship with the Defendant. He also confirmed that Huynh was sober that night. It was suggested that it was he who wanted to roll to show off his boxing prowess, but he disagreed. While he had trained in boxing at some point prior to the incident, he was adamant it was for weight loss. He said he had never actually boxed with anyone.

[24] He provided further details on how the rolling transpired at the Defendant’s sister’s house. He said the Defendant asked him to get on top of him. The Defendant grabbed his arm with both hands and said, “I got you bitch”. He said it started to hurt, so he lifted his arm and jerked it away. This made the Defendant fall to the floor and hit his head. He started snoring immediately.

[25] He acknowledged not being truthful with police when they arrived outside the pizza shop. He denied ever trying to gouge the Defendant’s eyes.

[26] Huynh testified and confirmed much of what the Complainant said regarding the events leading up to the visit to the pizza shop. He said that he was the driver who brought people to the engagement part in Leamington, and then back to the residence on Marion Street afterwards. To the time they arrived at the Marion residence, he had not consumed any alcohol. When they arrived, however, he had a shot of Jameson’s whiskey. He was having his second drink, this time mixed with pop, when the Complainant and Defendant started to roll. He testified that “they” wanted to do it. While he was in the room at the time, he was on his phone and not paying attention.

[27] His attention was caught by a loud bang. He looked up to see the Defendant unconscious on the floor and the Complainant saying, “this guy’s knocked out”. Huynh tried to revive the Defendant, who came to quickly. He got the Defendant some water. To Huynh, the Defendant seemed ok, if a bit dizzy.

[28] The Defendant started getting angry at the Complainant and yelling at him about being knocked out. The three of them went to pick up a pizza they had ordered. Huynh was hopeful they could talk it out and that the walk to the pizza shop would do them good.

[29] On the way, he said the Defendant continued to yell and berate both him and the Complainant. Huynh tried to be a peacemaker, telling the Defendant it was ok, and that no one thought any less of him for having been knocked out. The Defendant responded with more yelling, calling the Complainant a pussy and saying that he was the only one who had ever won a gold medal. Huynh’s attempts to calm the Defendant were unsuccessful.

[30] On arrival at the pizza shop, Huynh stayed inside to pay while the others waited outside. After Huynh paid he could hear the situation escalating outside the shop. He left the shop and went to the other two. He said he heard the Complainant say words to the effect of “you hit me hard all the time too” and kicking out at the Defendant. The Defendant responded with a kick “with all his strength”. They started kicking and punching at each other. Huynh tried three times to break them up but couldn’t. The pizza shop owner came out and threatened to call police. At that point, the Complainant was on top of the Defendant. After hearing about the police being called, the Complainant stopped fighting and moved to get off the Defendant.

[31] As he was getting up, the Defendant grabbed his leg and tripped him. The Defendant got on top of him and was, in Huynh’s estimation, attacking him. He saw the Defendant gouging at the Complainant’s face, clawing with his left hand. Huynh pulled the Defendant’s left hand away. The Complainant called out, “he’s biting my hand”. Huynh then put his own hand on the Defendant’s throat to, in his words, “gain compliance”. He heard a pop and a snap. He saw the Defendant spit out the Complainant’s finger. The Defendant laughed and said that’s why you don’t put fingers in people’s mouths. The Defendant got off the Complainant and stood chuckling while Huynh looked for the finger.

[32] After finding the finger by a garbage bin, Huynh told the Defendant to leave. He asked the Complainant what he should tell the ambulance about who caused the injury. The Complainant told him to say it was a stranger.

[33] Soon after, the Defendant returned. He was looking for his phone. He went back to the Complainant, who was sitting on the ground against the wall of the pizza shop. The Complainant told him to stay away but he did not. The Complainant threw a punch and they began fighting again. Huynh hung up with the ambulance call taker and intervened again. When he did, the Defendant was again on top of the Complainant. Huynh put him in what he termed a “sleeper hold” and squeezed around the Defendant’s neck. The Defendant stopped fighting and got up. Huynh again told him to leave, which he did.

[34] While he initially told police it was a stranger who had attacked the Complainant, he changed his account when police contacted him again hours later. He said he had wanted to protect his longtime friend, but couldn’t. He told the officer it was the Defendant who had fought with the Complainant.

[35] In cross-examination, he testified that while the Complainant was into boxing, it was for weight loss. When the Complainant would roll with the Defendant, it was to humour him, and he wouldn’t use any boxing techniques. He said that while he was a student of wing chun kung fu, he did not participate in any rolling.

[36] He testified that on the day of the party, everyone was getting along well. He said the Defendant was talking about his martial arts to everyone and that he was very proud of it. There were no issues at the party that he witnessed.

[37] When they got to the Marion residence, he heard the Complainant and Defendant talking about martial arts. He heard the Complainant say “show me what you’re trying to say” as the Defendant was trying to explain a move to him. They agreed to roll. When the Defendant was knocked out, he said the Complainant looked disappointed and seemed to think the Defendant was faking.

[38] After the Defendant woke up they went to pick up the pizza. The Defendant was already angry with the Complainant for what he had done. The situation became more heated as they walked. The Defendant was questioning the Complainant’s manhood and calling him names.

[39] He further testified how after the biting incident he was torn about what to tell police. He didn’t know if he should tell on his friend and ruin his life. He was, as he said, very conflicted. In the end, he agreed with the Complainant to tell police it was a stranger who was responsible.

[40] Finally, the Court heard from the Defendant.

[41] He testified that nothing untoward happened at the party. He said that throughout the day the Complainant had been telling him about a new jiu jitsu move he wanted to try out. The Defendant told the Complainant to show him, and he’d try to help him out. That is, his testimony is that engaging in jiu jitsu that day was the Complainant’s idea, not his.

[42] They rolled inside the Marion residence. He testified the Complainant showed him the new move and he told the Complainant how he could make the move more efficient. He said the Complainant started lifting him up. He told the Complainant not to slam him to the ground, but he did. He went on to say that he was “strangled” and blacked out.

[43] He went to the pizza shop with the Complainant and Huynh. On the way, he said he confronted the Complainant about what he’d done. He said he told the Complainant it had been inappropriate. The Complainant told him it had been a mistake.

[44] When they arrived at the pizza shop, the Defendant went inside. He saw from the surveillance video filed as an exhibit at this trial that he was not wearing shoes at the time. That came as news to him. He was apparently unaware that he’d walked the two blocks from the residence to the pizza shop barefoot. He testified that it was outside the shop that the Complainant started to hit him.

[45] He said the Complainant “bull-rushed” him. The Complainant kicked him and started punching him. He pulled the Defendant’s shirt over his head and got on top of him on the ground. He said the Complainant was punching him until he was able to turn him over and get on top. Once the Defendant was on top of the Complainant, he told the Complainant the fight was done and held up his hands. At that point, the Complainant reached up and tried to gouge out the Defendant’s eyes. The Complainant’s hands were on his face. He felt something in his mouth, so he bit down. He spat out the finger.

[46] He next felt something around his neck pull him upward. Huynh and the Complainant told him to leave, so he did. He realized later that he didn’t have his phone so he returned to the shop area looking for it. Huynh found it and gave it to him. He testified that the Complainant then said, “get him out of here before I kill him”. He said that Huynh then “ushered me out of the building”. He was asked to clarify that point and confirmed that yes, they were back inside the pizza shop at this point.

[47] He said that when initially walking to the pizza shop he was feeling the effects of hitting his head. He likened it to drinking too much and experiencing the room spinning. Still, he said his memory of events was “pretty sharp”.

[48] In cross-examination he testified that he’d been studying Brazilian Jiu Jitsu for 3 ½ years at the time of the incident. He trained 7 days a week and had been in three competitions, winning a gold medal at one. He said he rolled with people all over the province and confirmed that he would tell people about his training and his gold medal as he was proud of his accomplishments. He said he’d rolled with the Complainant in the past and that he would usually win, given his training.

[49] When asked about the walk to the pizza shop, he admitted to swearing at the Complainant and calling him a pussy. He said that after the Complainant kicked him, the Complainant immediately started punching him in the face. The Complainant got him on the ground face-first, but he was able to turn over. He then used a move he called a “pendulum sweep” to flip the Complainant over and get on top of him. When he did, he kept his hands at his sides even when the Complainant reached up and grabbed his face. When asked why he didn’t use his own hands to remove the Complainant’s, he said he “genuinely did not want to put my hands on him, I genuinely tried not to hurt him”.

[50] The Defendant also provided several photographs of himself that he said represent the injuries he suffered in the altercation with the Complainant. He also provided a receipt from a chiropractic clinic he says he attended for concussion therapy. This, he said, was as a result of being slammed on his head by the Complainant while rolling.

[51] I turn now to my analysis of the evidence to determine the answer to Issue 1.

[52] Was the biting done by the Defendant for the purpose of defending or protecting himself from a use of force? The Crown must prove it was not, beyond a reasonable doubt.

[53] While this is not a W.D. case, I must still weigh and assess the evidence of each witness. Before I can answer either issue I must determine what the facts of the case are. Then, on the basis of the facts found, I can consider if the Crown has disproved self-defence.

[54] I have the evidence of three witnesses, together with the exhibits filed. The witnesses are the two combatants and their mutual friend. I will first consider the evidence of the Complainant.

[55] He testified in a generally forthright and clear manner. He told of a Defendant who was very involved in Brazilian Jiu Jitsu and liked to talk about it and practice it. He said it was the Defendant who was pressuring him to engage in rolling, first at the party and then at the Marion residence. After they did, he said the Defendant was very angry at him. He was swearing and calling the Complainant names. The anger turned physical outside the pizza shop. The Complainant tried to subdue the Defendant, but the Defendant took the Complainant’s retreat as an opportunity to seize the advantage. He got on top of the Complainant and ultimately bit the end of his finger off. After leaving the scene briefly, the Defendant returned and assaulted the Complainant again.

[56] The only real issue I can point to with the Complainant’s evidence is that he seemed to minimize his interest in jiu jitsu and rolling. I suspect he was a more willing participant in these activities than he let on. That does not, however, mean I should disbelieve the balance of his evidence. I do not. And that is because of Robert Huynh.

[57] In my view, Huynh is the key witness in this case. There was a question of just how neutral a witness he really was, given his ongoing friendship with the Complainant and his dissolved friendship with the Defendant. But as the Crown points out, at the time of the incident Huynh was likely closer to the Defendant than he was to the Complainant. They’d known each other most of their lives. He went to the extent of lying to police to protect him. Their relationship may have withered subsequently, but at the time, when he told police what he said really happened, he was close friends with the Defendant. While he may not be an independent witness, since he knew both parties, I find he testified as an objective observer of what happened that night.

[58] Huynh’s evidence corroborates key pieces of the Complainant’s testimony. Most important is his corroboration of the order of events outside the pizza shop. Huynh testified that when he left the store and went back outside with the shop employee, he saw the Complainant on top of the Defendant. The Complainant said the fight was over and started to get up. It was then that the Defendant tripped him and reignited the fight. The Complainant testified that he was trying to push the Defendant off of him. Huynh saw the Defendant claw at the Complainant’s face. He heard the Complainant say the Defendant was biting him. He heard the moment when the finger was bitten off and saw the Defendant spit it out. Both the Complainant and Huynh testified to the Defendant laughing after he did.

[59] Both also testified that after the Defendant left for a brief time, he came back and went after the Complainant again. Both testified that Huynh had to pull the Defendant off the Complainant.

[60] Huynh provided more detail in his evidence, which I’ve already summarized. In short, I accept Huynh’s evidence in its entirety. I find he had no interest or agenda in the matter. He testified clearly about what he saw and was not shaken on cross-examination. His evidence stands strongly on its own and corroborates that of the Complainant, erasing any concerns I might have had about the Complainant’s evidence. In addition, where Huynh’s evidence conflicts with the evidence of the Defendant, I accept the evidence of Huynh and reject that of the Defendant.

[61] Further corroboration came from the photos of the Complainant filed as exhibits. I’m not speaking of the hand photos as that injury was admitted. Rather, I refer to the photos in Exhibits 4 and 5. These show clear injuries to the Complainant’s eye area. This supports Huynh’s contention that it was the Defendant clawing at the Complainant’s eyes, and not the other way around.

[62] I have carefully considered the evidence of the Defendant. I do not believe it nor does it leave me with a reasonable doubt as it relates to the claim of self-defence.

[63] I find that the Defendant is likely a poor historian of the events of that night. That may be because of him hitting his head, or alcohol consumption, or both. Either way, I must consider his ability to recall events clearly when assessing his evidence. It is odd, for example, that he had no memory of walking two blocks to the pizza shop barefoot. What happened to his shoes? He clearly doesn’t know.

[64] In his examination in chief, he said only that he told the Complainant on the way to the pizza shop that what he’d done was “inappropriate”. It was not until cross-examination that he admitted to yelling and swearing at the Defendant and calling him a pussy. He was not forthcoming in that part of his evidence.

[65] As to the altercation outside the pizza shop, the Defendant testified to one skirmish with the Complainant. He said the Complainant rushed at him and began punching him in the face. They went to the ground and the Defendant was able to get on top of the Complainant. The Complainant tried to gouge out his eyes and so the Defendant bit his fingertip off. After that, he left. He returned for his phone but there was no further conflict with the Complainant (other than his claim that the Complainant threatened to kill him).

[66] The photographs filed by the Defendant show a bruise on his back and slight bruising on his right eye. The Crown also conceded that another photo, not filed, depicted bruising to the Defendant’s knees. He testified that all photos were taken approximately two days after the incident. While these photos do show some very minor injuries, they do not corroborate his testimony. He testified that he was punched in the face several times by the Complainant. The Complainant, who, it was pointed out several times, had trained in boxing. The only injuries are small bruises under his eye and to his back, and scraped knees. If the photos do anything, they dispute his claim of being repeatedly punched by the Complainant.

[67] The receipt from the chiropractic clinic is similarly unhelpful. He testified that the treatments he received were for “concussion therapy” because of an injury he said he did not have prior to the altercation. The incident with the Complainant took place the night of 28/29 June. The receipts detail appointments from 24 August to 14 November. The appointments began nearly two months after the incident. I can’t say that they resulted from anything that happened that night. Moreover, the only evidence I heard about the Defendant suffering a head injury arose from the rolling, an activity in which he willingly participated. The receipt does not assist him.

[68] Finally, the scrapes to his knees and the fact that he subsequently lost a tooth speak only to, at most, there being a scuffle that night. That there was a physical confrontation is not in dispute. His injuries are consistent with that altercation but do not assist me in determining the issue of self-defence.

[69] Given the Defendant’s lack of candour in his evidence and the apparent effects of either alcohol or hitting his head, I reject his evidence of how the altercation outside the pizza shop unfolded. His claim that once getting on top of the Complainant he kept his hands at his sides even as the Complainant tried to gouge out his eyes is simply unbelievable. Likewise that he would resort to biting the Complainant without even attempting to use his own hands to remove those of the Complainant makes no logical sense.

[70] I also accept the contradictory evidence of Huynh beyond a reasonable doubt. Even discounting the flaws in the Defendant’s evidence that I have identified, this in itself is sufficient support for rejecting the evidence of the Defendant (see: R. v. J.J.R.D., 2006 ONCA 888, [2006] O.J. No. 4749 (C.A.)).

[71] After weighing all the evidence before me, I make the following findings of fact:

(1) At the Marion residence, the Defendant and Complainant engaged in rolling. Both were willing participants. (2) The Defendant was briefly knocked out during the rolling when he struck his head on the floor. (3) The Defendant was very angry that the Complainant had done that to him. (4) On the walk to the pizza shop, the Defendant was yelling at the Complainant, calling him names. He was making reference to the gold medal he’d won in jiu jitsu. (5) Once at the pizza shop, while Huynh was inside, a physical altercation began. (6) That altercation ended when Huynh and the pizza shop employee came outside. At that point, the Complainant was on top of the Defendant. The Complainant said the fight was over and began to get up. (7) At that point the Defendant tripped the Complainant and got on top of him. He clawed at the Complainant’s face with his hand, causing the eye injury seen in the photograph. (8) As the Complainant was trying to push the Defendant off, the Defendant realized the Complainant’s finger was in his mouth and bit down on it as hard as he could, severing the fingertip. He spat it on the ground. (9) Huynh pulled him off the Complainant. The Defendant laughed and said words to the effect of “that’s why you don’t put fingers in people’s mouths”. (10) At Huynh’s insistence, the Defendant left the scene. He returned a short time later looking for his phone. (11) When he returned the altercation began again. The Defendant pinned the Complainant to the ground. Huynh lifted him off in what he called a “sleeper hold”. The Defendant then left the scene for good.

[72] Was the Defendant defending himself from a use of force when he bit the Complainant? Based on the facts as I have found them, the answer is no. When Huynh and the pizza shop employee came out, the Complainant said that fight was over. He started to get up. It was the Defendant who then kept the altercation going. There was no longer any use of force from which he needed to protect himself. His tripping of the Complainant and the subsequent biting of his finger were not defensive. They were a renewal of his offence. On all the evidence, I am satisfied beyond a reasonable doubt that the Defendant was not acting in defence against a use or threat of force when he bit the Complainant.

[73] The answer to the first issue is no.

Issue 2: Was the act committed by the Defendant reasonable in the circumstances?

[74] Section 34 of the Criminal Code sets out three pre-conditions to a successful claim of self-defence. A defendant must show a reasonable belief that force is being used or threatened against the defendant or others, that the action taken was in defence against that use or threat of force, and that the action taken was reasonable in the circumstances. To succeed, all requirements must be present. Parliament used the word “and” when connecting the paragraphs. The test is not a disjunctive one.

[75] Given that I have already found the action taken by the Defendant was not in defence against a use or threat of force, I do not need to consider if it was reasonable in the circumstances. I do not reach that part of the analysis.

Result

[76] The Crown has proved that the Defendant assaulted the Complainant. In doing so, by biting the end of his finger off, he disfigured the Complainant. He was not acting in self-defence when he did so. As a result he will be found guilty of Aggravated Assault.

Released: 29 March 2022 Signed: Justice S.G. Pratt