Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: 2022 12 13 COURT FILE No.: Toronto 21-75004536

BETWEEN:

HIS MAJESTY THE KING

— AND —

HANZEN GOODFELLOW

Before: Justice David S. Rose

Heard on: December 8, 9, 12, 2022 Reasons for Judgment released on: December 13, 2022

Counsel: Ms. Walia, counsel for the Crown Mr. Timol, counsel for the accused Hanzen Goodfellow

Rose J.:

Reasons for Judgment

[1] Mr. Goodfellow is charged with Aggravated Assault on Asaf Moonah on 27 May 2021. The incident happened in broad daylight on Danforth Avenue that afternoon, and was witnessed by several people other than the complainant and accused. Mr. Goodfellow made many admissions which had the effect of narrowing the case down. Each of the witnesses who testified at this trial saw things differently.

[2] Mr. Moonah testified that he was at the corner of Danforth and Arundel to pick up some food at a Greek restaurant on the south side of Danforth. He had driven around for about 30 minutes trying to find a parking spot without success. Ultimately he parked his silver Saturn SUV on the north side of Danforth in an illegal spot, which is to say the area of pavement he parked it on was clearly marked no parking. A picture of his car, and Mr. Goodfellow’s car parked beside it was introduced into evidence and was shown to each witness. According to Mr. Moonah’s evidence he parked about 5 feet from Mr. Goodfellow’s Honda, but the pictorial evidence has the two vehicles closer than that, perhaps only two at most.

[3] According to Mr. Thiyagaraja, traffic was moving slowly along Danforth that afternoon. He owned a restaurant on the south side of Danforth across from where Mr. Moonah parked his SUV. The restaurant has a big window fronting onto Danforth, so he had a good view.

[4] Mr. Moonah testified that as he parked his car Mr. Goodfellow drove by with his passenger side window down and called him “an old fucker”. Mr. Moonah denied seeing a dog in the front seat of Mr. Goodfellow’s car, but said there may well have been a child in the rear seat. Mr. Moonah denied swearing at Mr. Goodfellow or spitting at him during that initial contact. Mr. Moonah said that there was no reason why Mr. Goodfellow stopped and called him an old fucker. The two men had never seen each other before. According to Mr. Moonah this came out of nowhere. Mr. Moonah admitted to spitting on Mr. Goodfellow, but not in that initial contact. Mr. Moonah said that he was called an old fucker just when he had left his car, and was standing beside it. He did not know how Mr. Goodfellow knew his age.

[5] Mr. Goodfellow gave a markedly different account of that initial contact. He testified that he was on his way to a particular pet store on Parliament street with his 7 year old son in the back seat and his family dog in the front seat. They had left their house nearby at around 2:45, only minutes before. According to Mr. Goodfellow traffic was heavy that afternoon on the Danforth. As he passed Logan Avenue he was going somewhere around 7 – 10 km per hour. When he approached Arundel a man came out of a parked car to his right and swung the door open. The car was parked close to the traffic lane. The windows where down in Mr. Goodfellow’s car and he told him to be careful when getting out so he doesn’t hit other cars. With that Mr. Moonah let loose with profanities and racial slurs, and then spat on his dog.

[6] Mr. Goodfellow’s son Noble testified, confirming that he was in the back seat of his family’s car on the way to the pet store that day. There was traffic on Danforth. They weren’t moving but they weren’t parked either. The windows were down and, as the car passed Logan, a man opened his car into the road. His father told him to be careful. The man looked in the Goodfellow car and spat at the dog. His father said the f word and then the man went around the car. He said his father looked a tiny bit angry. He saw the other man spit on his father’s face and chest.

[7] Mr. Moonah testified that after the initial contact he walked around the back of the Honda. According to Mr. Moonah Mr. Goodfellow got of his car and was facing west, with Mr. Moonah facing east. This does not make sense, because by walking around the rear of the Honda he would have to face away from the driver’s door of the Honda in order to face east. Mr. Goodfellow would have to circle around Mr. Moonah in order to confront him facing west, and no witness ever described that. Mr. Moonah also described Mr. Goodfellow getting out to confront him between the two cars, which is at odds with his evidence that the confrontation was at the rear of the Honda. Mr. Moonah testified that Mr. Goodfellow was jumping around between the two cars like a boxer, but agreed that he did not mention that in his police statement.

[8] Mr. Goodfellow testified that he got out of his car when he saw Mr. Moonah pass behind it and stand near the rear driver side passenger door where his son was sitting with the open window. He was then facing east and Mr. Moonah faced west. At that point Mr. Moonah spat on his cheek and squared up. Mr. Goodfellow testified that he left his car because of his parental instinct when he saw Mr. Moonah walk around the back of his car to go near where his son was seated.

[9] Under cross-examination Mr. Moonah said that Mr. Goodfellow then walked away, and Mr. Moonah called him a punk. With that, according to Mr. Moonah, Mr. Goodfellow turned around and attacked him from the back. Mr. Moonah also testified that after he walked behind the Honda he called him a punk twice and Mr. Goodfellow reacted rough, railing up on him. Under direct questioning he said that Mr. Goodfellow was by then in front of him. Mr. Moonah was adamant that he did not want to fight the driver of the Honda.

[10] Mr. Moonah described what followed as Mr. Goodfellow jumping up and down with his fists closed, spitting all over him, and Mr. Moonah saying “punk go your way”. It was at that point that he was attacked from behind. He also said that Mr. Goodfellow followed Mr. Moonah getting close. He said something and then spat all over Mr. Moonsah, so Mr. Moonah spat all over Mr. Goodfellow. That is somewhat incongruous with Mr. Moonah’s testimony that he was attacked from behind.

[11] Mr. Thiyagarajah described Mr. Moonah as j-walking across Danforth Avenue. He looked like he was saying something to the driver of the car. The man inside the car was not shaking his hands but the man outside the car was. The older man was gesticulating with his hands. The man who had been in the car beat the older man twice, but Mr. Thiyagarajah did not know where he was hit. Mr. Thiyagarajah said that he could not hear anything, but the older man was trying to protect himself with his hands. He never saw the older man hit the other one. After the young man punched the older man, he fell after 2 – 3 seconds. Notably, Mr. Thiyagarajah never saw Mr. Moonah get kicked.

[12] Mr. Lopresti was walking on Danforth eastbound. He was with his partner crossing Arundel when he heard a commotion. They were on the north sidewalk. He did not hear any dialogue, but an older man was crossing the street asking the driver of the Honda to let him pass. The older man backed up to the opposite sidewalk during the altercation with the driver of the Honda. The Honda driver had his chest pumped and his hands were in fists. He walked straight up to the older man while he was backing up and threw two punches at him with his right hand. One was to the chest and the other one to his face. He described the force used as a lot. The older man fell to the ground, and the driver of the Honda got back into his car and sped off.

[13] Mr. Lopresti described Mr. Moonah as putting his hand up to signal that he wanted to cross the street, but the driver of the Honda would not let him. He disagreed that the older man passed behind the Honda. He was adamant that he passed in front. Mr. Lopresti did not see the driver kick the older man. He denied that the older man was waving his arms around. He never saw the older man get out of his car, but he did see the driver of the Honda get out of that car.

[14] Ms. Cheesequay was also walking east on Danforth on the north side of the street that afternoon. She saw the older man in the middle of the road. The driver of the Honda was shouting. He was loud and angry. She heard loud blunt hitting sounds and by the time she got to where Mr. Moonah lay prone the driver of the Honda had gotten back in his car and left. She did not see how Mr. Moonah fell or what caused him to fall. She did see Mr. Moonah in front of the Honda yelling, looking at the driver. She was asked if she saw Mr. Goodfellow kick Mr. Moonah or jump on his back and said she didn’t see either of those things even if she had a clear view of the scene. Ms. Cheesequay thought that the older man had a walker, but had limited memory of that. She was confident that he was older.

[15] Mr. Stajirer was driving a car with his girlfriend on the Danforth looking for some food. He parked his car and walked to a restaurant on the south side of the Danforth. He noticed a commotion ahead of him slightly to the right. In the east bound lanes of the road two men were arguing. The back of the older male was facing west, and the honda driver was facing east. They were very close to each other. The older man seemed scared, and the younger man was aggressively yelling at him with clenched fists.

[16] Mr. Stajirer did not remember much about the Honda driver. The older man kept backing off and the Honda driver was pushing him with his body, ready for a fight. They were face to face. The older man seemed helpless, but the younger man punched the older man more than once. One punch for sure hit his right shoulder. Mr. Stajirer said that he never saw the older man threaten the younger man. He followed the Honda driver to his car and took photographs as he got in.

[17] Mr. Stajirer never saw the older man spit on Mr. Goodfellow. He saw no kick. When Mr. Moonah fell Mr. Goodfellow was facing the older man on the ground with his head slightly down.

[18] According to Mr. Moonah he was kicked in his left calves and feet with very strong force – perhaps ten times. He said that his two legs collapsed and he went down to the road. He was hit in the back and neck with the full weight of Mr. Goodfellow’s body. He was hit on the neck, possibly by an elbow or punch. Mr. Moonah put a number on the number of kicks he received while he was on the ground. That was not confirmed by any other witness.

[19] There is no dispute that Mr. Moonah was rendered dazed, but not unconscious and that his orthopaedic injuries included a broken pelvis requiring reconstructive surgery to his acetabulum. There is also no dispute that the incident has left Mr. Moonah was much less mobility than before that day and he is still in pain. His recovery has not been easy.

[20] As a first issue, the defence evidence is both exculpatory and at odds with the Crown evidence. Mr. Goodfellow and his son both claim that Mr. Moonah was the instigator and Mr. Goodfellow testified that he acted in self-defence that day. It is axiomatic that it is not the ultimate role of the Court to prefer one witness or another. The question is always has the Crown proven the charge against Mr. Goodfellow to the standard of beyond a reasonable doubt. In that exercise I must first ask if I accept the exculpatory evidence. If I do I must acquit. If I do not, does it raise a reasonable doubt? Lastly, I can only convict if the evidence I do accept proves the case to the criminal standard of proof, see R. v. W. (D.), [1991] 1 S.C.R. 742. There is another important legal requirement in case like this. The W.D. analysis reaches all exculpatory portions of the case, and is not confined to the defendant’s testimony, see Doubt about Doubt: Coping with R. v. W. (D.) and Credibility Assessment, David M. Paciocco (2017) 22 Can. Crim. L. Rev. 31 at page 39.

[21] With that in mind I would find Mr. Goodfellow to be a generally credible witness. I could find no material inconsistencies in his evidence. There were no internal inconsistencies. What gives me pause in his evidence is that when Mr. Moonah spat into his car he got out of the car instead of merely rolling up the windows and moving on. At first blush that is an external inconsistency because persons who get out of their car to confront other motorists, cyclists or pedestrians are choosing aggression and not de escalation. Justice Ferguson said that, ”The anti-social nature of road rage consists of the unreasonable degree to which a person reacts to the conduct of others using the highway.”, see R. v. Aitas, see also R. v. Norman. I agree, and would find that when there is a disagreement between a motorist and someone outside his or her vehicle, generally speaking getting out of the car commences escalation of the incident.

[22] With that established, based on Mr. Goodfellow’s evidence, and that of his son, I find that Mr. Moonah initiated the incident by spitting into the Honda, and I cannot reject Mr. Goodfellow’s evidence that Mr. Moonah hurled racial epithets at him as well. Indeed, Mr. Goodfellow’s evidence is confirmed to some extent by his son’s, who testified that Mr. Moonah spat into the Honda. I can think of no legitimate reason to spit into a stranger’s car.

[23] I also recognize that racism is an undercurrent in this case. Mr. Moonah admitted that he called Mr. Goodfellow a “punk”. Mr. Goodfellow says that Mr. Moonah said much more, and that as a racialized person living in Toronto he reacted to this. This does not explain or justify what happened on Danforth Avenue that day, but Mr. Goodfellow’s evidence must be seen in context, sensitive to the realities of racialized individuals today. See R. v. Theriault, 2021 ONCA 517 at par. 141.

[24] I therefore would not completely reject Mr. Goodfellow’s evidence.

[25] The test for self-defence was authoritatively and conveniently summarized by Di Luca J. in R. v. Theriault, 2020 ONSC 3317, upheld at 2021 ONCA 517:

227 Section 34 of the Criminal Code sets out the defence of self-defence. Where there exists an air of reality to self-defence, the Crown must disprove self-defence beyond a reasonable doubt.

228 The self-defence provisions have a blend of objective and subjective components that were recently reviewed by Doherty J.A. in R. v. Khill, 2018 SCC 26; and see also R. v. Phillips, 2017 ONCA 752 at para. 80, and R. v. Mohamad, 2018 ONCA 966 at paras. 213-214. The provisions are compromised of three components that can be succinctly summarized as follows: a. The Trigger - The defendant must reasonably perceive an application or threat of force against himself or another person. On this issue, the evidence has both a subjective and objective component; the defendant must subjectively perceive the application or threat of force, but that perception must be based on reasonable grounds, in other words it must be objectively justified. The objective justification is not purely objective, rather it incorporates relevant subjective features of the accused's personal characteristics and experiences, including training as a police officer; Khill, at paras. 48-51. b. The Motive - The defendant must respond with a defensive purpose. In other words, what the defendant does must be in response to the perceived threat or application of force. It must not be to seek vengeance, impose punishment or vindicate honour. This component is assessed subjectively. This is an important inquiry because absent a defensive purpose, the rationale for the defence disappears; Khill at para. 54 and R. v. Atkinson, 2013 MBQB 264. c. The Response - The defendant's actions must be reasonable in the circumstances, determined in accordance with the factors set out in s. 34(2) of the Criminal Code. This portion of the assessment is objective, but it too requires consideration of the relevant personal circumstances and experiences of the person and, as such, it maintains a subjective component. Proportionality of a defendant's response is a factor to consider. However, the defendant's response is not held to a standard of perfection viewed with the benefit of hindsight; R. v. Baxter, and R. v. Cunha, 2016 ONCA 491 at paras. 28 and 47. In assessing the reasonableness of the response, the court must be careful to not simply reason backwards from the nature of an injury and conclude that a response was unreasonable solely because it resulted in significant injuries; see R. v. Omand at paras. 25-27.

[26] In this case I have little difficulty in finding that the first two parts of the test are satisfied. Mr. Goodfellow was triggered by Mr. Moonah spitting into his car and hurling racial epithets at him. I also accept that Mr. Goodfellow was motivated by protection of his son in the back seat of the car. The pictorial evidence confirms that the windows were down, and when Mr. Moonah walked around the back of the car he would have stood just beside Noble Goodfellow’s open window. Mr. Goodfellow could also have rolled up the window, locked the door and waited for traffic to clear before moving off, but I would not assess the situation with the calmness of reflection. It is a subjective analysis, and I reject as speculative that Mr. Goodfellow decided to stop his trip to the pet store with this son and family dog for vengeance, punishment or honour or anything like that. This happened very quickly, and out of nowhere.

[27] Mr. Goodfellow’s response was to get out his car, and confront Mr. Moonah. Mr. Moonah then spat on Mr. Goodfellow and, according to Mr. Goodfellow, he waved his arms around, as did Mr. Moonah. Mr. Moonah says he was kicked by Mr. Goodfellow and set upon when he was on the ground. None of the independent witnesses saw that, and I would find that there was no kicking. Mr. Moonah is simply extrapolating that his broken hip is the result of kicks, as opposed to falling on hard pavement. Three of the independent witnesses (Messrs. Stajirer, Lopresti, and Thiyagarajah) saw Mr. Goodfellow punch Mr. Moonah twice to three times, after which Mr. Moonah went down. An important fact is Mr. Moonah’s admission that he spat at Mr. Goodfellow at that point. The response portion of the s. 34 analysis must include that. I have little difficulty finding that Mr. Goodfellow delivered a proportionate response to Mr. Moonah in the circumstances. At its highest he punched Mr. Moonah 2 – 3 times after being spat on. More likely he was waving his arms around after being spat on. That is a reasonable response to Mr. Moonah not just after he spat on Mr. Goodfellow, but considering the entirety of the events commencing when the two men first engaged with each other.

[28] I therefore find that Mr. Goodfellow takes the benefit of self-defence under s. 34. The Crown has not disproven self-defence beyond a reasonable doubt. The proximate injuries to Mr. Moonah was the result of the fall, which were caused by the either the punches delivered by Mr. Goodfellow, or arms being waved around during the altercation on the road. I have a doubt about whether Mr. Moonah was in fact punched. That has not been proven to the requisite standard.

[29] I also would tend to disbelieve portions of Mr. Moonah’s evidence. I find some of his evidence externally inconsistent. I do not accept that a father driving his son to a pet store would stop the trip for the purpose of hurling abuse at a total stranger standing on the side of the road. Mr. Moonah’s explanation for how this started lacks credibility. I also have difficulty accepting that Mr. Goodfellow even knew that Mr. Moonah was that old in the brief seconds that preceded stopping the car. The pictures lead in evidence do not show him to be obviously aged. Rather, to my eye, he presented as fairly youthful.

[30] I also find a significant inconsistency with his testimony that he did not want to fight the driver of the Honda but still spat at him. That makes little sense. I find that his evidence that he was not looking for a fight to be less than candid about his involvement in the altercation.

[31] The independent civilians gave evidence without any obvious allegiance to the Crown or defence. With that said, none saw how this started, and therefore they lacked important context. Two of the witnesses saw Mr. Moonah pass in front of the Honda and not to the rear (Mr. Lopresti and Ms. Cheesequay) and therefore recalled the events differently in that sense. This is important because both Mr. Moonah and Mr. Goodfellow testified that Mr. Moonah passed behind the Honda, which is what caused Mr. Goodfellow to get out of the Honda. Mr. Lopresti and Ms. Cheesequay saw that part of it quite differently. Mr. Stajirer saw Mr. Moonah as being quite helpless, which is at odds with Mr. Moonah’s own evidence that he spat on Mr. Goodfellow. Ms. Cheesequay remembered that Mr. Moonah had a walker. I take from both Mr. Stajirer and Ms. Cheesequay that they saw Mr. Moonah as a passive and frail person. That is contradicted by Mr. Moonah’s own evidence.

[32] In the result Mr. Goodfellow is acquitted of the charge.

[33] This case was well prepared, well presented and well argued.

Released: December 13, 2022 Signed: Justice D. Rose