ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 126/12
DATE: 20140414

B E T W E E N:

HER MAJESTY THE QUEEN

• and -

TIRDAD HEYDARI

Rick Nathanson,
for the Crown, respondent

Craig Bottomley and Chris Sewrattan,
for the accused, appellant

HEARD: January 17, 2014

K.L. Campbell J.:

REASONS FOR JUDGMENT

[Summary Conviction Appeal]

A. Overview

[1] The appellant, Tirdad Heydari, was tried by Mr. Justice B. Cavion of the Ontario Court of Justice on a charge of assault causing bodily harm. The offence was alleged to have been committed in the early morning hours of October 1, 2011, in the entertainment district in Toronto, against the complainant, Joshua Levesque. At approximately 2:00 a.m. the appellant and the complainant became involved in an altercation in which the appellant punched the complainant in the face, causing him to lose three teeth. The only issue at trial was whether the appellant, in delivering the blow that caused bodily harm to the complainant, was acting in self-defence.

[2] The trial proceedings took place on July 10, 2012. In the result, the trial judge rejected the appellant’s defence of self-defence, and concluded that the Crown had established the guilt of the appellant beyond a reasonable doubt. In his reasons for judgment convicting the appellant, Cavion J. drew all of the following conclusions from the evidence:

(1) The “drunken complainant” was first involved in an altercation with an unknown third party, a “spiky haired youth,” over whose group of friends were entitled to the use of a taxi. This third party slapped the appellant in the face, and then swiveled around and disappeared.

(2) The appellant, who the trial judge described as an “immature” young man with a “chip on his shoulder” and an “attitude,” who had also been drinking that night, was observing the altercation from a location just three feet behind where the third party had been standing.

(3) After the complainant was slapped, and the third party had disappeared from the scene, the complainant pushed the appellant once. With the complainant’s accompanying gestures, this action suggested to the trial judge that the complainant just wanted the appellant to “get away from [him].”

(4) In response to being pushed, the appellant delivered “such a vicious punch to the face” of the complainant that he injured his own thumb and knocked out three of the complainant’s teeth. The complainant’s mouth was left bleeding from this single punch.

(5) After injuring the complainant, and up until his arrest, the appellant continued to throw “wild” punches in the direction of the complainant, but was “not connecting” with these punches.

(6) The trial judge concluded that, in all the circumstances of this case, the appellant’s violent reaction to being pushed by the complainant was not self-defence, but rather was “out of proportion to the force applied” to the appellant by the complainant.

[3] In the result, the trial judge sentenced the appellant to a seven-day intermittent term of imprisonment (in addition to the appellant’s three days spent in pre-trial detention), and a one-year term of probation. The trial judge also ordered the appellant to make financial restitution to the complainant in the amount of $8,395, the cost of the dental work required by the complainant.

[4] The appellant appeals against his conviction, raising three grounds of appeal. First, the appellant contends that the trial judge erred by analyzing the proportionality of his response to being pushed exclusively in terms of the consequences of the force rather than the force actually used. Second, the appellant argues that, in any event, the appellant is entitled to a new trial given the substantive legal benefits conferred by the subsequently enacted Citizen’s Arrest and Self-Defence Act, S.C. 2012, chap. 9, s. 2. This Act came into force on March 11, 2013, some eight months after the trial of this matter had concluded, but while this appeal was still pending. Third, the appellant argues that the reasons for judgment of the trial judge do not adequately explain his conviction.

B. Analysis

1. Introduction

[5] According to the law at the time of the alleged offence (October 1, 2011) and the time of the trial of this case (July 10, 2012), the general proportionality of the appellant’s response to the complainant’s push was a threshold legal issue. According to s. 34(1) of the Criminal Code, R.S.C. 1985, chap. C-46, as interpreted by the jurisprudence, where an accused was unlawfully assaulted without having provoked the assault, the accused would be acting in self-defence provided that he did not intend to cause grievous bodily harm or death to the complainant, and he used no more force than was necessary to defend himself. In short, if the accused used excessive force, the accused was criminally liable for his assault on the complainant.

[6] In assessing the general proportionality of the actions of the accused, there were at least two important principles that had to be kept in mind. First, the accused must be granted some flexibility or leeway regarding the degree of his force. After all, as has often been said, an individual “facing an upraised knife” cannot be expected “to weigh with nicety” the “exact measure of responsive force.” An accused acting in the heat of the moment, filled with a combination of adrenalin and fear, cannot be expected to quickly react with balanced and measured perfection to the nature of the risk of danger posed. See: R. v. Antley (1964), 1963 258 (ON CA), 1 O.R. 545 (C.A.), at pp. 549-550; R. v. Baxter (1975), 1975 1510 (ON CA), 27 C.C.C. (2d) 96 (Ont.C.A.), at p. 111; R. v. Hebert, 1996 202 (SCC), [1996] 2 S.C.R. 272, at p. 281.

[7] Second, the focus must be on the degree of force employed by the accused, not on the resulting consequences of that degree of force. The trier of fact must not engage in “backward reasoning,” inferring only from the consequences suffered by the complainant that the force used by the accused must have been excessive. At the same time, the nature of the injuries suffered by the complainant may properly be taken into account to the extent that they help in quantifying the degree of force used by the accused. In short, the consequences of the accused’s actions may properly be taken into account, provided that they are viewed as no more than simply one of the factors that informs the assessment of whether the conduct of the accused was proportional. See: R. v. Matson (1970), 1970 1013 (BC CA), 1 C.C.C. (2d) 374 (B.C.C.A.), at p. 380; R. v. Kandola (1993), 1993 774 (BC CA), 80 C.C.C. (3d) 481 (B.C.C.A.), at pp. 488-489; R. v. Webers (1994), 1994 7552 (ON SC), 95 C.C.C. (3d) 334 (Ont.Ct.Gen.Div.), at p. 352; R. v. McGraw, 2004 34937 (ON SC), [2004] O.J. No. 4481 (S.C.J.), at para. 21; R. v. O.(C.J.), [2005] O.J. No. 5006 (S.C.J.), at paras. 26-27; R. v. Oppenheimer, 2011 ONSC 4901, [2011] O.J. No. 3918, at paras. 51-52.

2. Application of the Former Self-Defence Provisions – Excessive Force

[8] The appellant contends that the trial judge erred in his assessment of whether he used reasonable and proportionate force in defending himself against the complainant. More particularly, the appellant argues that the trial judge only concluded that his defensive actions were disproportionate and excessive because of the gravity of the physical injuries the complainant suffered from his single punch. I disagree.

[9] The trial judge concluded that the push by the complainant did “not require such a vicious punch to the face that knocks out three teeth and damages the accused’s thumb.” According to the trial judge, this “reaction [by the appellant] is out of proportion to the force applied to the [appellant].” Further, the trial judge noted that, on the appellant’s own evidence and that of his friends, the appellant was “pushed back” by the complainant, at which point the appellant “punched [the complainant] with such force he knocked out three teeth, then continued throwing wild punche[s] until the police handcuffed him.” In the opinion of the trial judge, this conduct by the appellant was “not self-defence” as it was “an action out of proportion” to the circumstances of the assault inflicted on the appellant. [emphasis added throughout].

[10] In my view, the trial judge properly concluded that the actions of the appellant were excessive and disproportionate and thus, did not fall within the legal definition of self-defence. In reaching this conclusion the trial judge did not rely only upon the injuries suffered by the complainant. Instead, the trial judge correctly examined all of the relevant circumstances including: (1) the comparatively innocuous nature of the single, exasperated push of the appellant by the complainant; (2) the absence of any reason to believe that the complainant had any further violent intentions in relation to the appellant, especially given that the appellant had been only a curious bystander in relation to the complainant’s altercation with the “spiky haired” third party; (3) the “vicious” nature of the punch the appellant quickly delivered to the complainant’s jaw in response to a simple push; (4) the degree of force employed by the appellant in throwing this damaging punch given the serious physical injuries the punch caused to the complainant and the thumb injury suffered by the appellant himself; and (5) the numerous subsequent “wild” punches thrown by the appellant in the complainant’s direction even after the damaging vicious punch had been thrown.

[11] In assessing the proportionality of the appellant’s conduct, the trial judge was not required to ignore the physical injuries suffered by the complainant as a result of the appellant’s blow. The fact that a single punch by the appellant knocked three teeth from the complainant’s mouth is certainly some evidence of the considerable degree of force that must have been used by the appellant in throwing that punch. Cavion J. was entitled to take this evidence into account, together with all of the other relevant considerations shedding light on the proportionality of the appellant’s reaction to being pushed. Indeed, this evidence provided strong evidentiary support for the trial judge’s conclusion that the blow administered by the appellant must have been a “vicious” one. In my view the trial judge committed no error in concluding that the appellant used excessive force in reacting to being pushed by the complainant.

C. Conclusion

[32] In the result, the appeal against conviction must be dismissed. An order shall issue accordingly.

Kenneth L. Campbell J.

Released: April 14, 2014