R. v. McPhee, 2015 ONSC 3001

COURT FILE NO.: 65/14

DATE: 2015-05-11

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

JORDAN ALEXANDER MCPHEE

Maureen McGuigan, for the Crown

B. Greenshields, for Mr. McPhee

HEARD: January 27, 28, 29, February 12, 17,18, March 9, & April 7, 2015

REASONS FOR JUDGMENT

GRAY J.

1Jordan McPhee was tried before me without a jury on one count of aggravated assault. The indictment reads as follows:

THAT on or about the 12th day of September, in the year 2013, at the Town of Milton, in the said Region, he did maim Kevin DHILLON thereby committing an aggravated assault, contrary to Section 268 of the Criminal Code of Canada.

2At the time of the alleged assault, both Mr. McPhee and the complainant, Mr. Dhillon, were inmates at the Maplehurst Correctional Facility.

Background

3Kevin Dhillon is 27 years of age. On September 12, 2013, he was an inmate in Maplehurst Correctional Facility. He was 26 years old at the time.

4Mr. Dhillon is approximately 5’ 10” in height and weighs about 195 lbs. He testified that at the time of the incident he was about 155 lbs.

5Mr. Dhillon and the accused, Mr. McPhee, were housed together in a cell in Unit 1F. They were in cell seven. Mr. McPhee was there first and he had the top bunk. Mr. Dhillon testified that he offered to take the top bunk but Mr. McPhee declined. Generally, the bottom bunk is preferred.

6Mr. Dhillon testified that Mr. McPhee is 6’ 4” or 6’ 5” in height, and weighs over 200 lbs.

7Mr. Dhillon testified that he had known Mr. McPhee to some extent before they were housed together in cell seven.

8The cell in which they were housed had bars in the front, and two bunks on the wall opposite to the bars, joined together by a ladder, and had a toilet. Mr. Dhillon testified that between the bunk itself and whatever is over it, either the bottom of the top bunk or the ceiling, there is just enough room to sit.

9Mr. Dhillon testified that things were generally all right between himself and Mr. McPhee after he arrived. There were no particular issues.

10One issue that developed fairly quickly was the fact that there were flies of one sort of another in the cell, as a result of what Mr. McPhee was doing in his bunk. Mr. McPhee was making alcohol in bags that generally would otherwise hold potato chips. Into a bag Mr. McPhee would place liquid and fruit and bread and would allow the mixture to ferment. This produced a strong odour, and eventually fruit flies and other bugs that Mr. Dhillon found disturbing.

11Mr. Dhillon testified that he cleaned out the cell in order to minimize the bugs. Mr. McPhee did not offer to help.

12Mr. Dhillon testified that the cell was raided on one occasion by the authorities, who found some of Mr. McPhee’s alcohol. However, they missed one batch.

13Mr. Dhillon testified that there were two servers on the Range, one of whom was named Shane and the other of Chinese origin. Servers are inmates who assist in bringing supplies and meals to the inmates.

14Mr. Dhillon testified that on September 12, 2013, after breakfast the inmates did morning exercises outside the cell. They returned to their cells at approximately 11:30 a.m. for lunch.

15Mr. Dhillon testified that there were many fruit flies in the cell that day. Mr. Dhillon testified that he asked Mr. McPhee to clean his bunk. He offered to help.

16Mr. Dhillon testified that he was sitting on the lower bunk facing the bars of the cell. His feet were hanging off the edge of the bunk. He testified that Mr. McPhee came down the ladder and without warning struck him in the face. He said Mr. McPhee did not say anything and Mr. Dhillon did not see it coming.

17Mr. Dhillon testified that Mr. McPhee struck him with his fist on the left side of his face around his hairline and beside his left eye. There was only one blow.

18Mr. Dhillon testified that he asked “Why did you do this?” to which Mr. McPhee responded “You made me mad.”.

19Mr. Dhillon testified that he was stunned. He felt his face and he could feel bone.

20Mr. Dhillon testified that Mr. McPhee called for a guard, and before the guard arrived, said “You’re going to say you fell off the bunk and hit your head on the toilet.” The server, Shane, came and called one of the guards, who arrived after about ten minutes. While they were waiting, Mr. McPhee emptied out his bunk and disposed of the alcohol by either giving it to someone in an adjacent cell or flushing it down the toilet. He testified that Mr. McPhee said “Do you want to go again?”, or words to that effect, and adopted a fighting stance.

21Mr. Dhillon testified that he felt faint and could not see well. He felt considerable pain. He testified that he packed up his own belongings because he knew that he would be moving to a different cell.

22Mr. Dhillon testified that two guards came and took him outside the cell and ultimately to the healthcare station. One of the guards was holding him. He was in considerable pain.

23After being at the healthcare station for a short period, he was taken to Milton District Hospital by ambulance. He was kept there overnight and was then transported to Oakville Trafalgar Hospital where he underwent surgery. On the fourth day he was returned to Maplehurst.

24Mr. Dhillon testified that the pain was unbearable and he was given morphine. He said the pain was particularly bad after the surgery. He said his face was swollen and it blew up after the surgery. After the surgery, his lip was deformed as well as his cheek and his eye. He said it took a week before he could eat properly and about a month before the swelling went down. He said his left eye opened after about two weeks. He could not see out of his left eye because it was bloody. He could not talk very well for about two weeks.

25After being in the infirmary once he was returned to Maplehurst, he was placed on a medical unit. There he was interviewed by the police.

26Mr. Dhillon testified that he was released from Maplehurst in November, 2013. He then saw his own family doctor and a dentist.

27Mr. Dhillon testified that at this point, his eye twitches and he feels pressure. He cannot look directly at things. There is numbness and pain in his gums. He has a scar under his eye and on the side of his head that is visible and he feels self-conscious.

28Photographs were introduced into evidence on consent that show injuries to Mr. Dhillon’s face that are consistent with the descriptions given by Mr. Dhillon in his evidence. Photographs of Mr. McPhee were also introduced on consent, that show no marks or injuries on Mr. McPhee.

29On cross-examination, Mr. Dhillon denied that he had challenged Mr. McPhee to a fight. He testified that the last thing he saw was Mr. McPhee coming down the ladder and striking him. He said he was sucker punched.

30Mr. Dhillon acknowledged that generally speaking there is a code within the institution, to the effect that inmates will deal with things between themselves without disclosing anything to the authorities.

31Mr. Dhillon acknowledged that he was in the “hole”, or segregation, before he was placed in Mr. McPhee’s cell. This arose out of an incident involving another inmate, a Mr. Murphy. He testified that Mr. Murphy bit his thumb.

32Mr. Dhillon also acknowledged that in November, 2012, he had been involved in another incident after which he was sent to the “hole”. He took the position that he had been attacked.

33Mr. Dhillon acknowledged that it is not unusual that contraband will be held in cells by inmates. This includes alcohol, pills and other drugs. He acknowledged that drugs are frequently passed between inmates at Maplehurst.

34Mr. Dhillon acknowledged that he was in Maplehurst at the time because he was facing domestic charges. While in custody, he had been found in possession of a sleeping pill that he kept in a foam cup.

35Mr. Dhillon acknowledged that he had pleaded guilty to a domestic offence charge in 2009, for which he received a conditional discharge. In 2011, he was convicted of breach of probation. It arose out of an order that he not associate with a particular female person.

36In January, 2013, he was arrested because one of his sureties had revoked bail. In July, 2013, he applied to vary his bail terms, but his application was denied. There was a preliminary hearing in August, 2013 and his trial would have been a long way away.

37Mr. Dhillon was placed into Mr. McPhee’s cell in September, 2013. On November 26, 2013, there was a plea resolution which resulted in his pleading guilty to some offences and some were withdrawn. He was released.

38Mr. Dhillon acknowledged that Mr. McPhee’s bunk was a mess and the stuff he was making in his bunk attracted flies and caused an odour. Mr. Dhillon said it was disgusting. He said he had discussed it with Mr. McPhee to no avail.

39Mr. Dhillon acknowledged that on one occasion he stood on his bed and looked into Mr. McPhee’s bunk. He told Mr. McPhee he was tired of the problem, and would try to move off the range.

40Mr. Dhillon was asked whether he knew what a “Kinder egg” is. He denied that he knew what it was. Apparently, a Kinder egg is a plastic egg-shaped device that ordinarily would contain a toy or something similar. It was put to Mr. Dhillon that inmates use Kinder Eggs for hiding and transporting drugs and tobacco. It was suggested that an inmate might hide such a device, with its contraband, in an inmate’s rectum.

41Mr. Dhillon denied that he challenged Mr. McPhee to a fight, after which Mr. McPhee came down from his bunk and said “Are you serious?” He denied taking a swing at Mr. McPhee.

42Mr. Dhillon denied knowing an inmate named Scherer, otherwise known as “Irish”. He denied that he had given Mr. Scherer a Kinder egg in which contraband was contained.

43Jane Lowe testified. She is a registered nurse employed at Maplehurst. She has been a nurse for 42 years.

44Ms. Lowe testified that Mr. Dhillon was brought to the medical unit on September 12, 2013 on an urgent basis. She testified that his blood pressure readings were low. She testified that his eyes were not reactive, and his face was “caved in”.

45Judith Acker testified. She has been a correctional officer for 23 years and she is employed at Maplehurst.

46She testified that on September 12, 2013, shortly after 11:30 a.m., she was advised that someone had fallen and was hurt. She testified that Mr. McPhee, an inmate in cell number seven, called to her. Officer Narejko asked her to call for assistance. She saw Mr. Dhillon being escorted off the unit.

47Frank Narejko testified. He has been a correctional officer for 27 years. He has been at Maplehurst for 12 years.

48On September 12, 2013, one of the servers got his attention about something going on in cell number seven. He attended there. He saw Mr. Dhillon standing in the cell with tears on his face. He was holding a pillow case containing his belongings. Mr. McPhee was sitting on a table.

49Mr. Narejko testified that Mr. Dhillon was “not happy”. He took him out of the cell and Officer Keating took him to the health unit.

50Mr. McPhee was taken off the Range. He was calm, collected, and passive. He seemed oblivious to what was going on.

51Mark Keating testified. He is a Supervisor at Maplehurst and has been a correctional officer for 30 years. He has been at Maplehurst since August, 2013.

52Mr. Keating testified that he heard about a problem on September 12, 2013 at around lunchtime. He went to cell seven and found Mr. Dhillon there holding a pillowcase. Mr. Dhillon’s face was swollen.

53Mr. Keating testified that he took Mr. Dhillon to the nurses’ station, which is about 100 steps away from Mr. Dhillon’s cell. Mr. Dhillon began to struggle on the way. He appeared laboured, and he slowed down. He was worse by the time he got to the nurses station. He was visibly shaken and upset.

54Mr. Keating testified that he was the one who took the photographs of Mr. Dhillon.

55Mr. Keating testified that at about 12:20 p.m., Mr. Dhillon was placed in an ambulance to be taken to the hospital. Upon checking, he discovered that Mr. Dhillon was admitted to the hospital later that day.

56Mr. Keating also testified that he was the one who took the photographs of Mr. McPhee that show that no injuries were suffered by him.

57On cross-examination, Mr. Keating testified that there are video cameras in operation in the institution, but they do not record activities in the cells.

58Joseph Cartwright testified. He has been the Operations Manager at Mapleshurst for five years, and has been in corrections for 30 years.

59In my view, Mr. Cartwright’s evidence was not overly helpful.

60Darren Jones testified. He is the security manager at Maplehurst. He acts as the liaison between Maplehurst and the police. He confirmed that while there is video surveillance in the institution, it does not record activities in the cells.

61Mr. Jones tendered a diagram of a typical cell at Maplehurst and a photograph of a typical cell.

62At the request of Mr. Greenshields, Mr. Dhillon was recalled for further cross-examination.

63It was put to him that after his testimony was finished, he returned to court and called defence counsel “tough guy”. He testified that he did not recall coming into the courtroom and calling counsel a “dirt bag piece of shit.”

64On re-examination, Mr. Dhillon testified that he realised that his glasses were missing when he was off the witness stand. His glasses are very important because he needs them for driving a vehicle. He said he returned to the courtroom and asked the police for help. The same day or the next day he got his glasses back. He said he was upset and emotional.

65In an agreed statement of facts, it was stipulated that Mr. Dhillon had returned to the courtroom and spoke to Crown counsel about his missing glasses. He said he had been threatened by someone who had been sitting on the defence side of the courtroom. Mr. Dhillon was told that this was a policing matter. Mr Dhillon and the police officer left the courtroom and Crown counsel remained. Mr. Dhillon returned and spoke to Crown counsel. He was still upset, wanting his glasses. Crown counsel reiterated that it was a police matter. Mr. Dhillon called out “you piece of shit dirt bag.” Crown counsel noted that at that point Mr. McPhee and the male to whom Mr. Dhillon had referred were no longer in the courtroom, but Mr. Greenshields and his articling student were still in the courtroom.

66Bernard Verrette testified. He is with the Halton Regional Police and was responsible for the Maplehurst unit at the time of the incident.

67Mr. Verrette testified that he went to infirmary and spoke to Mr. Dhillon. He noted that Mr. Dhillon had redness in his left eye. His face was swollen and there were stitches on his face. He was apparently scheduled for surgery.

68Jordan McPhee, the accused, testified. He is 37 years old. He has been an inmate at Maplehurst since October, 2011. He has a criminal record.

69In September, 2013, Mr. McPhee was housed in cell number seven on F Range. He said he first met Mr. Dhillon around the beginning of September, 2013.

70When Mr. Dhillon was transferred to cell number seven, Mr. McPhee was in the upper bunk. Mr. McPhee testified that Mr. Dhillon told him that he had had a fight when he was housed on G Range.

71Mr. McPhee testified that Mr. Dhillon was about 5’ 10” in height and weighed between 180 and 190 lbs. He said Mr. Dhillon worked out regularly. He said that he, himself, was 6’ 2” in height and weighed 195 lbs.

72Mr. McPhee testified that he made homemade alcohol in his cell. He made it in his bed. He would use fruit combined with juice and sugar, together with bread or crackers in a chip or garbage bag. It would ferment for about eight days. He said he had been disciplined for making alcohol in the past.

73Mr. McPhee testified that when he made alcohol, it would attract fruit flies and there would be some odour.

74Mr. McPhee testified that Mr. Dhillon had one or more Kinder eggs that he would secrete in his rectum. He used the Kinder eggs to hold tobacco and pills. Mr. McPhee thought holding a Kinder egg in one’s rectum was gross.

75Mr. McPhee testified that Mr. Dhillon discussed Mr. McPhee’s making of alcohol. Mr. Dhillon said it was gross and Mr. McPhee should get rid of it. He said Mr. Dhillon was not polite. He said Mr. Dhillon would stand up on a stool or table and look around Mr. McPhee’s bed. He would be in his face. Mr. McPhee testified that he made it clear that he was not going to get rid of the alcohol.

76Mr. McPhee testified that Mr. Dhillon offered him pills and tobacco, which Mr. McPhee refused. He testified that he told Mr. Dhillon that if Mr. Dhillon got rid of his contraband, he would get rid of the alcohol.

77Mr. McPhee testified that the cell was searched and his brew was found. He said Mr. Dhillon was upset, because he could have lost his own contraband as a result of the search. Mr. McPhee told Mr. Dhillon that that was his problem.

78Mr. McPhee testified that he continued making brew. Mr. Dhillon became a “pain in the rear.” He became domineering and paranoid. Upon hearing noises, Mr. Dhillon thought there were searches going on that might include their cell.

79Mr. McPhee testified that on September 12, 2013, he woke up at 8:00 a.m. They were let out of the cell after 9:00 a.m. They were returned to their cell between 11:00 a.m. and 11:30 a.m.

80Mr. McPhee testified that he entered the cell first and then Mr. Dhillon. He said Mr. Dhillon’s pupils were dilated. He said Mr. Dhillon offered to “take it to the back”, which is an expression used by inmates to signify that they should settle their differences through a fight. Mr. McPhee testified that he was not sure whether Mr. Dhillon was joking or whether he was serious.

81Mr. McPhee testified that he was on his bunk. Mr. Dhillon was asking him questions such as “Are you going to make me come up there?” He testified that Mr. Dhillon stood on a table and looked into Mr. McPhee’s bunk.

82Mr. McPhee testified that he turned away. He was getting uncomfortable. His palms were sweaty, and his heart was skipping beats. He said “Just drop it.”

83Mr. Dhillon was back down on the floor. He testified that Mr. Dhillon said “I’m going to come up”.

84Mr. McPhee testified that he climbed down the ladder and stood in front of Mr. Dhillon. He said “Are you serious?” Mr. Dhillon threw a punch, which did not land. Mr. McPhee then hit Mr. Dhillon with his right fist. Mr. Dhillon fell on his bunk. He had his feet on the ground.

85Mr. McPhee testified that Mr. Dhillon’s face “looked wrong”. Mr. McPhee called Shane, the server. Shane arrived in 60 seconds or less. Mr. McPhee told Shane “he fell”, but he gestured with his hand to the effect that Mr. Dhillon had been hit.

86Mr. McPhee testified that Mr. Dhillon was about to attack him again. Mr. McPhee said “Your face is caved in – sit down.” He said he did not touch Mr. Dhillon again.

87Mr. McPhee testified that there was a long duration before the guards came. Mr. McPhee and Shane told Mr. Dhillon that he may need surgery. Mr. McPhee could see that Mr. Dhillon’s orbital bone was broken.

88Mr. Dhillon was packing his stuff, and Mr. McPhee did also. He said he dumped some of his alcohol in the toilet and gave the rest to Shane.

89On cross-examination, Mr. McPhee said he is 6’ 2” in height. He is four to six inches taller than Mr. Dhillon. He weighed five to ten pounds more than Mr. Dhillon. He has longer arms than Mr. Dhillon, and he is taller. He acknowledged that he knew of his height and weight advantage over Mr. Dhillon. He acknowledged that after the incident, he suffered no injuries.

90Mr. McPhee testified that Mr. Dhillon was a “whiner.” With respect to Mr. McPhee’s brew, Mr. Dhillon engaged in “aggressive whining.” Mr. McPhee was irritated as a result. He tried to ignore him.

91Mr. McPhee testified that when he came down from his bunk on the day in question, Mr. Dhillon was not in his way. Mr. Dhillon did not say anything to him. Previously, Mr. Dhillon had looked in his bunk, but was not doing so when Mr. McPhee was on his way down from his bunk. When climbing down he faced inward towards the bunks. He felt comfortable when he was doing this.

92Mr. McPhee acknowledged that when Mr. Dhillon looked into Mr. McPhee’s bunk, Mr. Dhillon did not touch him.

93After Mr. McPhee had descended from his bunk, he was facing Mr. Dhillon. He said there was about one half second before anyone said anything. He was not afraid, but he was worried that Mr. Dhillon would attack him.

94He testified that Mr. Dhillon was between Mr. McPhee and the bed. He said Mr. Dhillon was about one foot or one and a half feet from him. He did not step back.

95Mr. McPhee testified that he said “Are you serious?” He was hoping that Mr. Dhillon would say he was joking. Mr. Dhillon said “Yeah”. Mr. McPhee said he stepped away when Mr. Dhillon threw a punch.

96Mr. McPhee testified that Mr. Dhillon swung at him with his right hand. Mr. McPhee stepped to his right towards the stools. He dodged the blow but Mr. Dhillon grazed him with his fist. Mr. McPhee said nothing. He said he has good reflexes, and he has confidence in them.

97Mr. McPhee testified that he could have held off and called for help, but he did not do so.

98Mr. McPhee testified that he saw Mr. Dhillon when he, Mr. McPhee, got out of his crouch. He said Mr. Dhillon threw a punch with his left hand. No words were spoken – once fists were swinging there was no talk.

99Mr. McPhee testified that he punched Mr. Dhillon as he was standing up. Mr. Dhillon had attempted a jab or hook with his left fist, downwards towards him. Mr. Dhillon hit Mr. McPhee’s shoulder but not square on, rather he brushed it. Mr. McPhee’s head was around Mr. Dhillon’s elbow.

100Mr. McPhee’s punch was like a roundhouse, as a downward punch. He said Mr. Dhillon went down like a sack of potatoes. Mr. McPhee said he used all his strength. It was as much as he could do. His shoulder was behind it. He hit Mr. Dhillon in the area of his eye and cheekbone. He knew that it had hit Mr. Dhillon’s orbital bone, which is quite fragile.

101Mr. McPhee testified that he wanted Mr. Dhillon to stop. He did not intend to incapacitate him. He said he had to punch as fast as possible. It was like an upper cut, but he used a roundhouse.

102Mr. McPhee testified that he did not hit Mr. Dhillon to stop him whining or to teach him a lesson. He said Mr. Dhillon was not sitting on his bunk, and Mr. McPhee was not standing over top of him. He denied saying “You made me mad.”

103Mr. McPhee testified that he did not tell Mr. Dhillon to say he fell. However, he did tell Shane that Mr. Dhillon fell.

104Mr. McPhee testified that he knows Mr. Kurt Scherer from the jail. He said they spent about two months on the same Range. They were former cellmates.

105Andrew Garbacz testified. He is a Sergeant at Maplehurst. He prepared an occurrence report regarding an incident between Mr. Dhillon and Mr. Murphy, on August 21, 2013.

106Mr. Garbacz testified that he did not observe the altercation. He observed scratches on both inmates. He testified that Mr. Dhillon had been bitten on his thumb and was taken to healthcare. He denied that there had been any physical involvement. He testified that Mr. Dhillon did not cooperate. He refused to sign any report. Mr. Murphy said it had been horseplay.

107Kurt Scherer testified. He has a criminal record. He testified that he knows both Mr. Dhillon and Mr. McPhee.

108Mr. Scherer testified that in November, 2013, he had certain charges outstanding regarding his involvement with a woman named Braga.

109He testified that on November 13, 2013, he was taken to the Brampton Courthouse. He was searched before and after court. He testified that he would sometimes put drugs in a Kinder egg and carry it inside his body.

110He testified that while in the cells in the basement of the Brampton Courthouse, he was there with Mr. Dhillon. He said Mr. Dhillon was trying to get bail. He was two cells down from the cell in which Mr. Dhillon was housed. They had come there in separate conveyances.

111Mr. Scherer testified that Mr. Dhillon said he was going for bail. He said Mr. Dhillon threw him a package. It was a Kinder egg. He said Mr. Dhillon put the Kinder egg in his jacket pocket and threw his jacket to him. Mr. Scherer took the egg and threw the jacket back to Mr. Dhillon. He said he did not see Mr. Dhillon again. He placed the Kinder egg in his rectum, and while he was strip searched, it was not discovered. He said he sold the Kinder egg when he returned to Maplehurst. He said he did not think he ever discussed with this with Mr. McPhee.

112On cross-examination, Mr. Scherer was unable to say whether this incident had occurred in November, 2013 or any other month. He said it could have been in January, 2013. He said he has been in jail at least 20 times, and it could have been 60 times. He acknowledged that for many years his most consistent address has been jail. He has met hundreds, if not thousands, of inmates. He testified that he has met Mr. McPhee’s lawyer.

113He acknowledged that with respect to the charges on which he was in custody in 2013, he had been in bail court eight times. He acknowledged that the incident could have taken place on any one of those dates.

114Mr. Scherer testified that he and Mr. Dhillon had been on the same Range twice. He testified that the first time, he, Mr. Dhillon and Mr. McPhee were all on the same Range. He could not recall which Range it was.

115Mr. Scherer testified that he only saw Mr. Dhillon twice. He never saw him outside jail. He first met Mr. Mr. McPhee a long time ago, perhaps three years ago. They spent a month or two on the same Range. They were on the same Range twice.

116He testified that he had sold drugs only once. He said it was the Kinder egg that he obtained from Mr. Dhillon. He testified that he did know what was in the Kinder egg, because he did not open it. Nevertheless, he sold it.

117Mr. Scherer acknowledged that from May 26, 2013 to June 4, 2013 he and Mr. McPhee were on the same Range. He said they socialized together then. He said he worked out with Mr. McPhee. He said Mr. McPhee was a well-built man. He said the next time he saw Mr. McPhee was two days before he testified.

118Mr. Scherer testified that on the day about which he testified, Mr. Dhillon was two or three cells down. He said Mr. Dhillon’s words were “I’m going to go for bail.” Subsequently, he did not know the exact words. It was after lunch that Mr. Dhillon said he was going to give him something. He threw his jacket to him. Mr. Scherer threw it back. He said Mr. Dhillon went to court at about 10:00 a.m. He was gone about one half hour. When he returned, he did not say anything.

119Mr. Scherer said there was some small talk between him and Mr. Dhillon through the cell bars. He said to Mr. Dhillon “how’s your face?” He said he had heard about this happening a couple of months before. Mr. Scherer said he was gone about ten minutes. He said he saw Mr. Dhillon, who said he had something for him. Mr. Scherer testified that he did not tell Mr. McPhee about the Kinder egg incident. Then he said he might have.

120Mr. Scherer acknowledged that he was familiar with the inmate code. He learned that Mr. McPhee had been charged and that Mr. Dhillon had talked to the police. Mr. Scherer was asked whether the Kinder egg incident might have occurred before the incident between Mr. McPhee and Mr. Dhillon. He said it might have.

121Mr. Scherer testified that in November, 2013 he moved into the same range as Mr. McPhee. He said he got on well with Mr. McPhee. He knew about the assault. He said to Mr. McPhee “someone ratted you out”. He told Mr. McPhee how he felt about it. He chatted with Mr. McPhee about his version. He said Mr. Dhillon did wrong.

122Mr. Scherer acknowledged that he knows how to operate within the inmate code. He acknowledged that Mr. McPhee was a senior inmate, and it would perhaps be good to have him as an ally.

123Mr. Scherer acknowledged that one does not do favours for rats. One will screw over a rat if it can be done. He said he never spoke to Mr. Dhillon after he discovered that Mr. Dhillon was a rat. He said that his allegations against Mr. Dhillon are not part of an attempt to screw over a rat.

124In an agreed statement of facts, it was stipulated that Mr. Dhillon and Mr. Scherer were both brought to the Brampton Courthouse on November 26, 2013. They were not transported there on the same prisoner wagon. While at the courthouse, they would have been kept in a block designated for protective custody prisoners.

125In another agreed statement of facts, it was stipulated that Mr. McPhee and Mr. Scherer were housed together on Unit 1, Range E on from May 16, 2013 to June 4, 2013. From June 21, 2013 to June 29, 2013 Mr. Scherer and Mr. Dhillon were housed in the same Range. Mr. McPhee and Mr. Scherer were in the same Range between November 16, 2013 and December 22, 2013. Between November 16, 2013 and November 22, 2013, Mr. Scherer was in the same cell with inmate Travassos. On November 22, 2013, Mr. Travassos moved into Mr. McPhee’s cell where they remained together until Mr. McPhee was transferred to another unit on December 23, 2013.

Submissions

126Mr. Greenshields, counsel for Mr. McPhee, submits that Mr. Dhillon should be considered a Vetrovec witness. His evidence should be scrutinised as a Vetrovec witness.

127Mr. Greenshields notes that there were no witnesses to the alleged assault. The only witnesses who have any direct knowledge of what happened are Mr. Dhillon and Mr. McPhee. It is up to the Crown to prove that the offence as charged has been proven beyond a reasonable doubt.

128Mr. McPhee has raised two defences: consent; and self-defence. The onus is on the Crown to negative both defences beyond a reasonable doubt. Mr. Greenshields submits that an air of reality has been raised with respect to both defences. Mr. Greenshields notes that the assault, as alleged, consisted of a single punch.

129Mr. Greenshields submits that there were significant difficulties with Mr. Dhillon’s evidence. He portrayed himself as a person who does not resort to violence, but nevertheless he had been involved in violent incidents while in custody. While he testified that he would not mislead a court of law in order to gain an advantage, the fact is that he did mislead the court on a number of occasions. For example, he testified that he had been moved to cell number seven because of “jail politics” or to relieve overcrowding, but actually he was moved there because he had been in the “hole”. Further, he had been there because he had engaged in a fight.

130Mr. Greenshields noted that Mr. Dhillon had a significant animus against Mr. McPhee. He was disgusted by Mr. McPhee’s activities in brewing alcohol and attracting flies. Second, he was a drug trafficker and he was concerned that Mr. McPhee’s activities would attract searches which might expose his drug activities.

131Mr. Greenshields submits that Mr. McPhee’s evidence is sufficient to at least raise a reasonable doubt. He testified that on September 12, 2013, Mr. Dhillon was at the boiling point and offered to “take it to the back”. He said Mr. Dhillon climbed up and looked into Mr. McPhee’s bunk. Mr. McPhee was in doubt as to what Mr. Dhillon might do. He said Mr. Dhillon was walking back and forth and using a threatening tone. He said “Are you going to make me come up?”

132In these uncertain circumstances, Mr. McPhee came down from his bunk for defensive purposes and asked “are you serious?” To that inquiry Mr. Dhillon took a swing at him. Mr. McPhee hit Mr. Dhillon with one punch to defend himself, and immediately called for help.

133Mr. Greenshields submits that Mr. Scherer’s evidence, while not perfect, confirms some of Mr. McPhee’s evidence and is seriously in conflict with Mr. Dhillon’s evidence on the point of whether Mr. Dhillon used a Kinder egg for the purpose of transporting and hiding his drugs.

134Mr. Greenshields submits that the fight was invited by Mr. Dhillon, and he consented to the force that was used against him. Furthermore, the elements of self-defence have been met.

135Mr. Greenshields submits that the Crown cannot make out the offence as charged in any event. It is alleged that Mr. McPhee “maimed” Mr. Dhillon. In order to maim someone, it must be shown that there has been permanent damage to a part of the body. No matter how serious the injuries were at the time of the incident, the evidence does not show that there is any ongoing deficit to any part of Mr. Dhillon’s body.

136Ms. McGuigan, counsel for the Crown, submits that the Crown has made out each essential element of the offence, and thus Mr. McPhee should be found guilty as charged. She submits that the Crown has demonstrated, beyond a reasonable doubt, that neither the defence of consent nor the defence of self-defence apply.

137Ms. McGuigan submits that Mr. Dhillon was maimed. There has been a loss of function sufficient to constitute maiming.

138Ms. McGuigan submits that Mr. Dhillon’s evidence should be accepted, because it accords with common sense and with the surrounding circumstances. Mr. McPhee’s evidence, on the other hand, defies common sense and should not be accepted.

139Ms. McGuigan submits that Mr. Scherer’s evidence is of no value. His evidence was riddled with inconsistencies and improbabilities, and there is a strong likelihood of collusion. His evidence was clearly on a collateral matter in any event, and should be given little weight. As only one example of an improbability, Ms. McGuigan points out that it was Mr. Scherer’s position that he sold the Kinder egg without knowing what was inside it, and without looking inside it. This is not credible on its face.

140Mr. Scherer was simply unable to say when the incident about which he testified occurred, or even in what month it occurred.

141Ms. McGuigan disputes that Mr. Dhillon should be regarded as a Vetrovec witness, but submits that in any event there is confirmatory evidence that should restore the faith of the trier of fact in his evidence.

142Ms. McGuigan submits that the defence of consent does not apply on the facts of this case. If Mr. Dhillon’s evidence is accepted, he did not consent to being punched. In any event, consent would be vitiated if the intent of Mr. McPhee was to cause serious bodily harm, which did occur. Clearly, Mr. McPhee intended to cause serious bodily harm. He struck Mr. Dhillon, on Mr. McPhee’s own evidence with all his strength. He put his shoulder behind it. The blow was to Mr. Dhillon’s left eye, near his cheekbone. Mr. McPhee knew about the orbital bone and how fragile it is.

143Ms. McGuigan submits that the Crown has disproved self-defence. Under section 34(1) of the Criminal Code, Mr. McPhee is not guilty of the offence only if:

a. Mr. McPhee believed on reasonable grounds that a threat of force was being made against him;

b. the punch thrown by Mr. McPhee was administered for the purpose of defending or protecting him from the use or threat of force; and

c. the punch thrown was reasonable in the circumstances.

144Ms. McGuigan notes that the factors to be considered in determining whether the punch thrown was reasonable in the circumstances are listed in section 34(2), and upon a consideration of the factors so listed, it must be concluded that throwing the punch was not reasonable in the circumstances.

145Ms. McGuigan submits that in deciding whether the act committed was reasonable, the Court should consider the following:

a. Mr. McPhee had a significant physical advantage over Mr. Dhillon;

b. Mr. Dhillon was inept and presented no real threat to Mr. McPhee;

c. Mr. McPhee had other means of responding to any threat posed by Mr. Dhillon:

i. Mr. McPhee could have stepped back from the confrontation, particularly since he was not hit by Mr. Dhillon;

ii. Mr. McPhee could have called for help;

iii. Mr. McPhee could have grabbed, held or clinched Mr. Dhillon rather than punching him;

d. Mr. McPhee could have used less force than he did, and could have directed his punch at a less vulnerable part of Mr. Dhillon’s body;

e. Mr. McPhee could have attempted to resolve the underlying issue involving the alcohol in his bed.

146On the evidence as a whole, it should be concluded that Mr. McPhee was not motivated by fear or any need to defend himself. On his own evidence he was supremely confident in his abilities. He came down from his bunk while he was angry. Mr. Dhillon was whining. If Mr. Dhillon was intent on assaulting Mr. McPhee, a larger man, why would he wait? Why would he not strike immediately?

147Ms. McGuigan points out that the injury to Mr. Dhillon is consistent with a downward blow. It is, thus, consistent with Mr. Dhillon’s evidence that the blow was administered while he was sitting on his bunk. On the other hand, Mr. McPhee’s description of the actions of the two individuals depicts a rather artificial and difficult to understand sequence of events.

148Cases relied on by the parties include R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742; R. v. B.D. (2011), 2011 ONCA 51, 266 C.C.C. (3d) 197 (Ont. C.A.); R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3; R. v. Mohamed (2014), 2014 ONCA 442, 310 C.C.C. (3d) 123 (Ont. C.A.); R. v. Baxter, 1975 CanLII 1510 (ON CA), [1975] O.J. No. 1053 (C.A.); R. v. McDonald (2012), 2012 ONCA 379, 284 C.C.C. (3d) 470 (Ont. C.A.); R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104; R. v. Docherty (2012), 2012 ONCA 784, 292 C.C.C. (3d) 465 (Ont. C.A.); R. v. Foley, [2000] O.J. No. 5204 (S.C.J.); R. v. Schultz (1962), 1962 CanLII 553 (AB SCAD), 133 C.C.C. 174 (Alta. C.A.); R. v. Brown, 2005 CanLII 24762 (ON SC), [2005] O.J. No. 2951 (S.C.J.); R. v. Dos Santos, [2013] O.J. No. 5951 (S.C.J.); R. v. Pilon (2009), 2009 ONCA 248, 243 C.C.C. (3d) 109 (Ont. C.A.); R v. Dosser, [2009] A.J. No. 1190 (Q.B.); R. v. Armstrong, 2002 BCSC 1824, [2002] B.C.J. No. 3079 (B.C.S.C.); R. v. Stehniy, [2010] O.J. No. 1646 (C.A.); R. v. Saraj, [2012] O.J. No. 638 (S.C.J.); R. v. Getachew, [2013] O.J. No. 1674 (S.C.J.); and R. v. Pine, [1998] O.J. No. 4743 (Gen. Div.).

Analysis

149I have taken the liberty of reproducing the relevant provisions of the Criminal Code as an appendix to these reasons.

150I will first consider whether what occurred would constitute an aggravated assault, apart from the defences. I will then consider the defences.

151Since Mr. McPhee called evidence, I must apply the principles set out in R. v. W.(D.), supra. Those principles require the following:

(a) if I accept the evidence called by Mr. McPhee, I must acquit him;

(b) even if I do not accept that evidence, if it raises a reasonable doubt I must acquit him;

(c) even if that evidence does not raise a reasonable doubt, I can only convict him if the evidence that I do accept convinces me of his guilt beyond a reasonable doubt.

These principles apply both to establishing the essential elements of the offence, and to the requirement that the Crown disprove any defences that are properly raised.

152I give no weight whatsoever to Mr. Scherer’s evidence. It was riddled with inconsistencies and contradictions. It was on a collateral point in any event.

153There can be no question that apart from the defences, what occurred would constitute an aggravated assault. Mr. McPhee applied considerable force to Mr. Dhillon, which caused him serious injury.

154I am satisfied that what occurred constitutes “maiming” as referred to in section 268 of the Code.

155From an examination of R. v. Schultz, supra, and the cases that have come after it, there are two possible definitions of the word “maim”. One contemplates that a complainant has lost the use of some part of the body or bodily function, and the other is where the assailant causes bodily harm to the victim to such an extent that it renders the victim less able to fight back or to defend himself or herself. The latter meaning has clearly been established here. The extent of damage to Mr. Dhillon clearly rendered him unable to fight back. However, it has also been established that Mr. Dhillon has lost, to some extent, the ability to focus his eyes as a result of his injury. That is sufficient to constitute maiming; see R. v. Stehniy, supra.

156Accordingly, the issue that remains is whether the defences raised, namely, consent and self-defence, preclude a conviction.

157The defences must be considered only if there an “air of reality” to them: see R. v. Cinous, supra. In deciding whether there is an air of reality, one does not make credibility findings or otherwise assess the evidence. What must be considered is whether there is evidence upon which a properly instructed trier of fact, acting reasonably, could acquit if the evidence is accepted. What must be asked is whether the evidence put forth is reasonably capable of supporting the inferences required to acquit the accused. If the defence has an air of reality, the onus is on the Crown to negative the defence beyond a reasonable doubt.

158In this case, it is clear that there is an air of reality to both defences. The Crown did not argue otherwise.

159The defences overlap to some extent, in that the evidence to be considered with respect to both defences overlaps.

160With respect to the issue of consent, it has two elements. First, the question is whether Mr. Dhillon invited Mr. McPhee to engage in a consensual fight. Second, there is the question as to whether Mr. Dhillon’s consent to engage in a fight was vitiated if Mr. McPhee’s intent was to cause serious bodily harm, and serious bodily harm occurred.

161In terms of the issue of self-defence, the issue is now governed by section 34 of the Code. It replaces what most observers would agree was an unsatisfactory set of confusing principles encompassed within the previous provisions that governed the defence.

162Pursuant to section 34, the Crown must prove beyond a reasonable doubt that Mr. McPhee did not believe on reasonable grounds that a threat of force was being made against him; that he did not punch Mr. Dhillon for the purpose of defending or protecting himself from the use or threat of force; and that the act committed was not reasonable in the circumstances.

163I am prepared to assume, without deciding, that I must assess the evidence of Mr. Dhillon in light of the principles discussed in R. v. Vetrovec, 1982 CanLII 20 (SCC), [1982] 1 S.C.R. 811. In other words, I should assess his evidence as if he were an unsavoury witness, whose evidence is to be viewed with some suspicion and with a degree of caution. I should look for confirmatory evidence that can restore my faith in his evidence.

164In my view, the surrounding circumstances and the inherent probabilities and improbabilities are sufficient to restore confidence in the evidence of Mr. Dhillon.

165The surrounding circumstances render it unlikely that the version of events as related by Mr. McPhee is true.

166What had preceded the incident was unlikely to have precipitated a physical assault by Mr. Dhillon. While uncomfortable, the odour and the flies in the upper bunk were not physically threatening. They had been present for some time. Mr. Dhillon is shorter and lighter than Mr. McPhee, and it doubtful that he would physically challenge him. If he had actually challenged Mr. McPhee to a fight, it is doubtful that he would not have been on his guard as Mr. McPhee descended from his bunk. The description of the events by Mr. Dhillon is more plausible. The direction of the blow, downward, is more logically explained if Mr. Dhillon was sitting on his bunk. To accept Mr. McPhee’s rather convoluted explanation is more difficult.

167Some confirmatory evidence of Mr. Dhillon’s evidence is at hand. The medical centre confirmed the same injuries testified to by Mr. Dhillon. He “fell like a sack of potatoes” on his bed, which is more consistent with his sitting on the bed when he was struck. The fact that his face was “caved in” is consistent with even Mr. McPhee’s description of how he put all his strength into the blow and had his shoulder behind it.

168Having considered the evidence as a whole, including the evidence of Mr. McPhee, I am satisfied beyond a reasonable doubt that Mr. McPhee did not believe on reasonable grounds that there was a threat of force being made against him. I do not accept his evidence that Mr. Dhillon said “let’s take it to the back” or showed any signs that he wished to engage in any physical activity. I am satisfied beyond a reasonable doubt that Mr. McPhee was upset with Mr. Dhillon’s “whining”, and wanted to teach him a lesson. According to him, Mr. Dhillon’s whining had become aggressive and, I find, intolerable.

169I am also satisfied beyond a reasonable doubt that the punch administered by Mr. McPhee was not for the purpose of defending or protecting himself from the use or threat of force. Rather, it was for the purpose of teaching Mr. Dhillon a lesson.

170In any event, I am satisfied beyond a reasonable doubt that the act committed was not reasonable in the circumstances. In coming to that conclusion, I have considered the factors set out in section 34(2) of the Code. I have considered those factors assuming the facts as related by Mr. McPhee are accurate.

171It would not have been reasonable to administer the punch delivered by Mr. McPhee having regard to the nature of the threat by Mr. Dhillon. According to Mr. McPhee, Mr. Dhillon had invited conflict, by saying “do you want to take it to the back?” and “do you want me to come up there?” Mr. McPhee responded, he says, by descending from his bunk. If there was a threat at that stage, he could have simply stayed where he was. Even after he descended, according to him, there was an attempted punch, or two punches, by Mr. Dhillon that missed the mark. It was totally unnecessary in the circumstances to deliver a blow that disabled Mr. Dhillon.

172There were ample other means available to respond to the potential use of force. As noted, Mr. McPhee could have simply stayed in his bunk. He could have called for help. He could have just ignored Mr. Dhillon. Even after he descended from his bunk, once Mr. Dhillon missed the mark, he could still have called for help or grabbed Mr. Dhillon without punching him.

173As noted earlier, Mr. McPhee is taller and heavier than Mr. Dhillon. He would have an advantage in any physical confrontation.

174There had been no prior use or threat of force. While there had been some conflict between them, there had been no suggestion of any physical confrontation.

175The response by Mr. McPhee, if that is what it was, was totally out of proportion to Mr. Dhillon’s ineffectual punches that did not land. As noted earlier, other options were clearly available.

176For these reasons, I am satisfied beyond a reasonable doubt that the Crown has shown that the defence of self-defence is not available.

177I also conclude that the defence of consent is not available. For the reasons articulated earlier, I accept Mr. Dhillon’s evidence as to how the assault occurred, and I am satisfied that Mr. Dhillon did not invite a consensual fight, and he did not consent to being punched by Mr. McPhee. In any event, I am satisfied that Mr. McPhee intended to administer serious bodily harm to Mr. Dhillon and any consent Mr. Dhillon might have given would be vitiated. On Mr. McPhee’s own evidence, he used all his strength to administer the blow; it was as much as he could do; it was the best he could; it was administered from the shoulder; and it was aimed at the area of the eye and cheekbone, where Mr. McPhee acknowledged that the orbital bone is located, which is quite fragile.

178For all of these reasons, I am satisfied beyond a reasonable doubt that Mr. McPhee is guilty as charged.

Gray J.

Released: May 11, 2015

APPENDIX – APPLICABLE SECTIONS OF THE CRIMINAL CODE OF CANADA

34. (1) A person is not guilty of an offence if

(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;

(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and

(c) the act committed is reasonable in the circumstances.

(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:

(a) the nature of the force or threat;

(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;

(c) the person’s role in the incident;

(d) whether any party to the incident used or threatened to use a weapon;

(e) the size, age, gender and physical capabilities of the parties to the incident;

(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;

(f.1) any history of interaction or communication between the parties to the incident;

(g) the nature and proportionality of the person’s response to the use or threat of force; and

(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.

265. (1) A person commits an assault when

(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;

(b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or

(c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.

(2) This section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault.

268. (1) Every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant.

(2) Every one who commits an aggravated assault is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

R. v. McPhee, 2015 ONSC 3001

COURT FILE NO.: 65/14

DATE: 2015-05-11

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

JORDAN ALEXANDER MCPHEE

Defendant

REASONS FOR JUDGMENT