Court File and Parties
Court File No: CR-16-40000077 Date: 2017-03-21 Ontario Superior Court of Justice
Between: Her Majesty The Queen – and – Joash Bryan Avelino, Defendant
Counsel: Barry Stagg, for the Crown Lucas Rebick, for the Defendant
Heard: February 14-17 and 21-24, 2017
E.M. Morgan J:
Reasons for Judgment
I. Nature of the case
[1] On November 29, 2014, the complainant, Favrian Tan Hermosada, known to his friends as Brian, was the DJ at a karaoke bar on Bathurst Street in Toronto. He sustained a serious cut on his left cheek when he was hit with a beer bottle on the side of his head. The Defendant, Joash Bryan Avelino, also known to his friends as Brian, is charged with aggravated assault and assault with a weapon. He hit Mr. Hermosada with the beer bottle in an incident that took place sometime after 2:00 a.m. in the parking lot of the karaoke bar.
[2] As the trial progressed, it became apparent that although Mr. Hermosada and the Defendant had not met before that night, this was not a random battle of Brians. It was a fight over a young woman’s attentions. However, it took several days of trial testimony for that context to become clear. In fact, it took until the last two days of an eight-day trial for the real issue in the case – self-defense – to arise. Up until that point it had seemed that the question was one of identity. Only when the Defendant took the stand and conceded that he had indeed hit Mr. Hermosada with a beer bottle did the identity issue evaporate and the self-defense issue emerge.
[3] In the meantime, all of the witnesses for the Crown had completed their testimony. The Crown called five civilian witnesses – two women and three men – and two police officers. The two female civilian witnesses are both good friends of Mr. Hermosada’s, and one of them, Diana Gaoyen, is now the mother of his infant child and was the object of the fight. Ms. Gaoyen was so emotionally overwrought by the incident and its memory that while she was attempting to be truthful about the background and events leading up to the fight, she could not manage to give an objective view of the fight itself.
[4] The other female witness, Violeta Balite, is Ms. Gaoyen’s former roommate who at the time of the incident lived with and knew Ms. Gaoyen and Mr. Hermosada very well. Although she was generally a truthful witness, Ms. Balite was anxious to support her friends as much as possible. She testified that she was not present in the parking lot at the crucial moment when the fight took place, but only saw its aftermath when Mr. Hermosada was injured. The rest of her knowledge came second hand from what she heard and surmised after the fact, and was not very reliable or useful.
[5] Although they were generally truthful in their testimony, neither Ms. Gaoyen nor Ms. Balite seemed to know, or want to say, what to make of the entire affair. Although it became apparent that Mr. Hermosada was a rather controlling and jealous boyfriend to Ms. Gaoyen, and that the Defendant was a rather naïve pursuer of Ms. Gaoyen, neither Ms. Gaoyen nor Ms. Balite was willing to make those characterizations explicit. They described events as though the cause and context of the fight – i.e. the competition over Ms. Gaoyen’s attention at the karaoke bar and in the parking lot afterwards – did not register on them.
[6] The three male civilian witnesses for the Crown – Mr. Hermosada himself and his two good friends Jaeckel Gumpal and Rudolfo Landicho – are a different matter. Each of them in their own way proved themselves to be about as unreliable as any witness could be.
[7] Unlike the female witnesses, Mr. Hermosada was obviously involved in the entire episode and could not say that he was not present for the crucial moment when he was struck by the beer bottle. However, he claimed to have no memory of anything other than being hit and waking up in the hospital. In fact, he barely remembered the earlier part of the night in the karaoke bar and the moments just preceding the fight in the parking lot. As for Mr. Hermosada’s two buddies, they did not present themselves as being upset or too emotionally involved in the confrontation to have formed an objective view of the incident. Rather, they tried to portray themselves as uninvolved bystanders with no stake in the matter except to relay what they saw.
[8] The evidence of Mr. Hermosada and his male friends, however, did not pan out as they had planned. They each testified for the better part of a day and each laid out similar, but not quite identical, stories. It is fair to say that none of their stories make sense. By the end of the trial it had become clear that they were not forthcoming about the cause of the fight that ensued in the parking lot, they did not truthfully describe how the fight began or how it progressed after it started, they were not credible about who they saw and who was talking to whom inside the karaoke bar that evening, and they misrepresented where Mr. Hermosada’s car was and whether and where he had driven it in the parking lot – a crucial fact that they either ignored or tried to cover up.
[9] For better or for worse in terms of getting to the truth of the incident, while Mr. Hermosada, Mr. Gumpal and Mr. Landicho appear to have twisted the truth about what they saw and experienced that night, none of them were particularly clever about it. In fact, their stories contained so many obvious untruths, contradictions, and hapless attempts to coordinate with each other, that eventually it all became rather transparent.
[10] I hasten to add that I do not blame the Crown for the weaknesses that emerged in its case. After all, Mr. Hermosada had indeed been injured with the beer bottle, and someone had to have done it. Crown counsel introduced credible photographic and forensic evidence provided by the police who investigated after the incident, and called the obviously important civilian witnesses to describe the incident for the court. It is not his fault that the complainant and lead witness, Mr. Hermosada, testified by giving the kind of evasive, defensive and non-responsive answers to straightforward questions that one might expect to hear from a person who is accused of wrongdoing, not from a person who is allegedly the victim of wrongdoing. Likewise, it would have been hard to foresee that the other important witnesses – i.e. Mr. Hermosada’s two male friends – would change their evidence in significant ways from what they had previously told the police.
[11] In a marked contrast to Mr. Hermosada and friends, the Defendant testified with the kind of innocence that one might expect to hear from a victim rather than the perpetrator of a crime. He projected a kind of wide-eyed naivety about the people around him, but in the end he was far more credible than those who testified against him.
[12] Specifically, the Defendant seemed genuinely surprised that the police might take an interest in his having smashed Mr. Hermosada’s face with a beer bottle. He seemed likewise completely unaware that his previous visits to Ms. Gaoyen’s apartment, his bringing her gifts each time he returned from a fishing trip, and his invitations to her to come to his place in the absence of her boyfriend, might signal a message to Ms. Gaoyen. He appeared equally oblivious to the fact that his visible happiness at seeing Ms. Gaoyen enter the karaoke bar, and his gesture in greeting her and making room for her to come sit next to him while her boyfriend retired to the music booth where he worked, might put Ms. Gaoyen in a difficult position or cause any consternation with Mr. Hermosada.
II. The ‘one-sided fight’ version of events
a) Spontaneous combustion
[13] According to Mr. Hermosada, Mr. Gumpal and Mr. Landicho, the fight in the parking lot was caused by absolutely nothing. The Defendant simply erupted, spontaneously, without any prior spark or prompting. None of them, even after reflecting on the incident in its aftermath, could fathom why the Defendant would so suddenly and violently strike Mr. Hermosada after such a good time was had by all at the karaoke bar.
[14] As Mr. Hermosada described it, and as his two friends ‘corroborated’, Mr. Hermosada came out to the parking lot after the bar closed, packed his equipment into his car, and then mentioned to Ms. Gaoyen, who was standing near the Defendant, that he was ready to go home. Out of nowhere, the Defendant smashed a beer bottle into his face, and he fell to the ground bleeding. The next thing Mr. Hermosada knew, he was in the hospital being treated for his wounds.
[15] As far as the Crown’s other two male witnesses were concerned, there is no explanation for, and no understanding of, the Defendant’s actions. Mr. Gumpal testified that there was really nothing that a rational person could understand:
A: At first I didn’t understand it. Q: He was acting crazy? A: Yes.
b) The caring friends
[16] According to Messrs. Gumpal and Landicho, after seeing Mr. Hermosada get hit his friends gathered around him in a caring way. They tried to get between him and the Defendant in order to fend off any more attacks.
[17] Mr. Gumpal specifically said that the Defendant and his friend who he was with, Dexter Anchata (although Mr. Gumpal did not know his name at the time), waived broken beer bottles at them so that they could not come near. They then all turned their attentions to their friend as he lay on the ground, and helped him move back into the karaoke bar where they continued to administer to him. Eventually, they decided to put him in a car and drive him down to Toronto Western Hospital where he could get proper medical attention.
[18] In all of this description, no real fight occurred, at least not in the sense of a two-party struggle. The story that Mr. Hermosada and his friends Mr. Gumpal and Mr. Landicho told is that the Defendant smashed a bottle on Mr. Hermosada’s face and that was the end of it. The Defendant and his friend Mr. Anchata intimidated everyone else, who in any case only responded like peacekeepers by seeking to separate and create a truce between the warring parties, and, of course, to help their friend up from the ground.
[19] I assume that Mr. Hermosada and Messrs. Gumpal and Landicho all came up with this version of events early on; indeed, the police statements that they gave within hours of the incident reflect this narrative. What they apparently did not think of, however, is that the police would be contacting the Defendant and Mr. Anchata as well, and that they might even take their pictures. In fact, the very first witness at trial was Officer Rene Mijares, who attended at the scene, interviewed the Defendant and Mr. Anchata, and took photographs.
[20] The photos show Mr. Anchata and the Defendant riddled with cuts, bruises, abrasions, and at least one nasty-looking black eye. Nothing in the Crown’s witnesses’ rendition of the incident accounts for the Defendant and his friend being beat up. If defense counsel had never pressed them in cross-examination – which in fact he did quite effectively – the Crown’s civilian witnesses would have left the impression that the Defendant and his friend were untouched by the event, and that the Defendant and Mr. Anchata were the perpetrators but in no way the recipients of any violence.
[21] The photographic evidence from shortly after the incident makes it clear that an altercation took place and that the one-sided version told by Mr. Hermosada, Mr. Gumpal, and Mr. Landicho is either incomplete or entirely inaccurate. Mr. Anchata and the Defendant both eventually testified and said that they were in a serious fight and were badly outnumbered by Mr. Hermosada and his friends, and the photographic evidence supports this. In failing to acknowledge that there was an actual fight, and that, whatever happened to Mr. Hermosada, the Defendant and Mr. Anchata were also beaten, the Crown’s witnesses undermined much of their own credibility.
c) The cause of the fight
[22] It was Mr. Hermosada’s friend, Mr. Gumpal, who ultimately confirmed in cross-examination that this was a fight over Ms. Gaoyen’s attentions. Despite professing not to know where the violence in the parking lot came from, Mr. Gumpal described the Defendant as following closely on the heels of Ms. Gaoyen throughout the night at the karaoke bar. He related that at one point the Defendant approached Ms. Gaoyen and asked her to dance, but that Ms. Gaoyen said ‘No’ by holding up her hands and backing up. Nevertheless, he said, the Defendant persisted. Mr. Gumpal described the Defendant as having come on to her continuously even though she made it clear she didn’t want the attention from him.
[23] Mr. Gumpal also indicated that he saw the Defendant following Ms. Gaoyen around in the parking lot after the karaoke bar closed for the night. In fact, he said that in the parking lot the Defendant was acting like he wanted to physically take her with him.
[24] At that point, he said that Mr. Hermosada pulled his car from its parking space to a couple of parking spaces closer to where Ms Gaoyen and the Defendant were talking, left the ignition running, and said to Ms. Gaoyen, “Let’s go”. According to Mr. Gumpal, Mr. Hermosada then approached on foot to where the Defendant was standing with Ms. Gaoyen and said, “Hey, that’s my girl.” In response, the Defendant, still engaged with Ms. Gaoyen, confronted Mr. Hermosada and said, “What’s your problem?” Mr. Gumpal related that Mr. Hermosada then took Ms. Gaoyen’s hand and said, “Let’s go.”
[25] One noteworthy thing about this narrative is not only that it portrays the Defendant as a relentless pursuer of Ms. Gaoyen, but that it places the interaction between the two of them at the centre of the tensions at the karaoke bar and in the parking lot that night. The other noteworthy thing about this narrative is that for Mr. Gumpal it was new at trial. Mr. Gumpal gave a completely different statement to the police about what occurred when he spoke to them later in the morning of the incident in question. Mr. Gumpal confirmed that he was clear headed at the time he spoke with Officer Thomas Hwang, and that although he had been drinking at the karaoke bar earlier, the effects of alcohol had worn off by the time he and Officer Hwang had a conversation. Mr. Gumpal indicated that he told Officer Hwang everything he saw that evening when he was asked, in an open-ended way, “What happened?”
[26] In fact, Mr. Gumpal wrote his answer into Officer Hwang’s notebook in his own handwriting. He confirmed that he then reviewed it, and that he had answered the question truthfully and completely. His statement to Officer Hwang does not contain a single word about Ms. Gaoyen. His police statement says that they were in the parking lot, were standing around having a smoke, and the Defendant just attacked Mr. Hermosada without explanation. That matches his first testimony at the preliminary inquiry that the Defendant was simply irrational and ‘crazy’. The story has obviously developed quite a lot over the two years since that time.
[27] At the preliminary inquiry, Mr. Gumpal described the evening at the karaoke bar and the aftermath in the parking lot as tension-free. He said that nothing unusual or noteworthy happened inside the karaoke bar before the end of the evening. He also described the altercation in the parking lot as having nothing whatsoever to do with Ms. Gaoyen. He agreed that she was present when the Defendant struck Mr. Hermosada, but he said nothing about it being a fight over her attention.
[28] Mr. Hermosada’s version of the interactions with the Defendant is also rather curious. At first he insisted that he did not even notice that the Defendant or Ms. Gaoyen were at the karaoke bar with him. Although Ms. Gaoyen in her testimony indicated that she came to the bar with Mr. Hermosada, and that the Defendant and Mr. Anchata greeted her when she came in and that she immediately introduced them to Mr. Hermosada, Mr. Hermosada insisted that he remembered none of that encounter. He said that he did not speak to anyone at the tables in the bar on the way in.
[29] In fact, he said that he was entirely focused on his music that night, and that he would not have noticed who was there. He did concede that Ms. Gaoyen was at the karaoke bar, but he said he never noticed if she came or went. He also indicated that he knows that there were people dancing there, but that he has no idea of who was there or who was dancing (or trying to dance) with whom. In his initial statement to the police, Mr. Hermosada indicated that he was so oblivious of who was at the bar or in the parking lot of the bar after hours that he did not even know who hit him, let alone why.
[30] Under cross-examination at trial, Mr. Hermosada seemed to concede that he knew that Ms. Gaoyen was speaking with the Defendant. Indeed, he specifically said that he had to approach her in the parking lot and said, “Let’s go”, in order to get her attention. He related that it was too dark for him to realize that the Defendant had a bottle in his hand as he approached, but there was no suggestion from him that he did not know that Ms. Gaoyen was speaking with the Defendant; quite the contrary. He conceded that when he went out to the parking lot to put his musical equipment into his car, he knew that Ms. Gaoyen was talking with two men and that they were present when he approached her. At trial, when he was asked to identify who it was who hit him, he immediately identified the Defendant.
d) The position of the car
[31] When Mr. Hermosada first began his testimony in chief, he stated that after last call in the karaoke bar he packed up his musical equipment, took it out through the kitchen door which leads directly to the parking lot, loaded it all into his car which was parked against the side of the building, saw Ms. Gaoyen speaking with two people, approached her and said, “Let’s go”. Just then, someone suddenly hit him in the face, and the next thing he knew he was waking up in the hospital.
[32] After a few moments, his story changed slightly. He retold the incident, this time stating that that once he put his equipment in his car, he got in and moved the car around 3 parking spots, very slowly. He said that he then got out of the car, approached Ms. Gaoyen and said “Let’s go”, but she did not respond. At that point he got hit.
[33] In cross-examination his story changed yet again. After some prompting with questions, he suddenly recalled that he moved his car “about two feet” and that his girlfriend, Ms. Gaoyen, told him to get out of the car because he was too drunk to drive. He also stated that the parking lot was empty except for Ms. Gaoyen and the Defendant, and that Ms. Gaoyen told him to wait for his best friend, “Jeffrey”, to come drive him home. No one named Jeffrey ever testified or was otherwise identified at trial, and no Jeffrey ever showed up at the parking lot at 3:00 a.m. on November 29, 2014.
[34] Oddly, although Mr. Hermosada said that the parking lot was empty except for himself, Ms. Gaoyen and the Defendant, he arrived at the police station to provide a statement the next day along with Mr. Gaoyen’s roommate, Ms. Balite. He introduced Ms. Balite to the police as “the witness, the girl downstairs right now.” In doing so, he intimated to the police that Ms. Balite had seen the entire event – presumably because she, too, was in the parking lot at the time.
[35] For her part, Ms. Balite confirmed that she was in the parking lot after the karaoke bar emptied out, but she said that she was not in fact a witness to the blow that knocked Mr. Hermosada to the ground. She indicated that she went to her own car with her boyfriend, Mark, and that she and Mark were waiting to leave together with Mr. Hermosada and Ms. Gaoyen. When Mark turned on the car’s headlights, they could see Mr. Hermosada already lying on the ground. One would think that at that point the short-lived fight was over, since Mr. Hermosada said that once he was hit he was knocked unconscious. However, Ms. Balite went on to embellish the story slightly, and testified that the Defendant and his friend, Mr. Anchata, were still attacking Mr. Hermosada.
[36] Given that she testified that she only saw the incident after Mr. Hermosada was on the ground, Ms. Balite indicated that she did not know whether he had moved his car in the parking lot before the altercation began. However, she was at least willing to concede that Mr. Hermosada had driven a car to the event that night. His friend, Rudolfo Landicho, was not even willing to go that far. Although everyone else had seen Mr. Hermosada get out of the car and approach Ms. Gaoyen and the Defendant seconds before the Defendant struck him, Mr. Landicho would not say that Mr. Hermosada had a car there at all. He speculated that Mr. Hermosada may have arrived by taxi or Uber.
[37] Mr. Gumpal, however, was far more certain about the car. The problem is that at the preliminary inquiry he was certain that Mr. Hermosada had not moved his car and at trial he was equally certain that he had moved his car; in fact, at trial he stated that Mr. Hermosada actually moved his car twice. Mr. Gumpal said that Mr. Hermosada got into his car and “turned it around”, then got out and approached the Defendant and Ms. Gaoyen on foot and said, “Hey, that’s my girl”. Mr. Gumpal testified that the Defendant then hit Mr. Hermosada with the bottle, after which Mr. Hermosada got back into his car and, mysteriously, moved it a short distance once again.
[38] As defense counsel explained it, the collective line taken by Mr. Hermosada and his friends at the preliminary inquiry was that the fight happened in the parking lot before Mr. Hermosada even had a chance to get into his car to move it. The problem with this theory became obvious, however, when the police photographs were reviewed. On the ground of the parking lot a trail of blood drops is clearly visible leading out from underneath Mr. Hermosada’s car on the passenger side. It was obvious from these photos that the car had moved, as it is physically impossible for Mr. Hermosada to have been hit in the face and to have left a trail of blood leading underneath his own car.
[39] Accordingly, Mr. Gumpal corrected his own testimony, and had Mr. Hermosada moving his car not once but twice. Of course, that description itself is rather astounding considering that Mr. Hermosada himself had testified that he was knocked out cold by the blow administered by the Defendant and that he only woke up hours later in the hospital. Indeed, defense counsel’s authentic surprise at Mr. Gumpal’s description of the car having been moved twice seemed to register on Mr. Gumpal, who then made efforts to say that maybe someone else moved the car the last time, and that in fact he’s not sure if it was Mr. Hermosada at all.
III. The ‘two-sided fight’ version of events
[40] Mr. Hermosada and his friends all described the incident as a “fight”, but none of them described anything but a sneak attack in one direction. Whereas in normal parlance it takes only one active party and one passive one to make an attack, it generally takes two active parties to make a fight. This bit of ambiguity was cleared up by the testimony of the Defendant and his friend, Mr. Anchata.
[41] In the first place, it is worth stating that the Defendant probably did not have to testify. And by that I do not mean from a legal point of view he did not have to testify since a criminal defendant has an unquestionable right under section 11(c) of the Charter not to testify. Rather, I mean that strategically the Defendant did not have to testify. The Crown’s witnesses were so seriously lacking in credibility that I had doubts about whether any of them, including Mr. Hermosada, had actually witnessed Mr. Hermosada being struck.
[42] The problem is perhaps best exemplified by Mr. Landicho’s evidence, which varied wildly between his initial police statement and his trial testimony. When Mr. Landicho spoke with Officer Hwang the morning of the incident, he specifically stated that he did not know who hit Mr. Hermosada but he would probably recognize the culprit’s red jacket and sneakers. At trial, he testified in the exact reverse, and indicated that he did not know what the assailant was wearing on the night of the incident, but he recognized him as the Defendant.
[43] In other words, while it was clear from his injuries that someone had hit Mr. Hermosada, the Crown’s case left a doubt about who had done it. Nevertheless, the Defendant voluntarily took the witness stand and, with admirable honesty, conceded that he had struck Mr. Hermosada with a beer bottle. He said that he did so in self-defense, and that he feared for his life as he faced a violent attack by Mr. Hermosada.
[44] The Defendant’s version of events, which was supported by Mr. Anchata’s testimony, was that when he came out of the karaoke bar he saw Ms. Balite and went to speak with her. He told her that he had heard that her friends from the bar were going to her apartment to continue the party now that the bar had closed, and he asked if he and Mr. Anchata could come along. She told him that it was too crowded and that they could not come. He said that that ended their conversation.
[45] According to the Defendant, he then went back to his friend Mr. Anchata’s car, and as they prepared to go home he saw Ms Gaoyen who appeared to be in tears and quite upset about something. He approached her to see what was wrong, and noticed Mr. Hermosada, who had been loading equipment in his car and speaking with Ms. Gaoyen, get into his car and drive it out of the parking lot. The Defendant tried to console Ms. Gaoyen, and offered her a ride home in Mr. Anchata’s car.
[46] At that moment, the Defendant said that he saw Mr. Hermosada’s car come around the block and roar back into the parking lot at a high speed, heading directly to where he and Ms. Gaoyen were standing. The Defendant was extremely surprised, as the car was going very fast and almost hit them. It stopped suddenly right in front of them – a mere three or four feet from them – and effectively pinned them against Mr. Anchata’s car. Mr. Hermosada then came out of his car and approached looking very angry. The Defendant said that as he got up close, “It looked like he wanted to punch me.” The Defendant testified that he heard Mr. Hermosada say, “Are you hitting on my girl?”
[47] The Defendant indicated that he had been drinking a beer as he came out of the karaoke bar, and continued to drink it as he spoke first with Ms. Balite and then with Ms. Gaoyen in the parking lot. He then said that in the shocking moment when Mr. Hermosada almost ran him over with his car, he forgot that he had the beer bottle in his hand. According to the Defendant, as Mr. Hermosada, full of rage, came within reaching distance, the Defendant swung his right arm to lash out and protect himself and the beer bottle struck Mr. Hermosada’s face and broke. In his testimony, the Defendant described his sense of shock and fear:
Q: And then what happened? A: That’s it, I didn’t notice myself anymore, I hit him with a bottle. Only after I hit him I noticed that I had a bottle. A: I was surprised because I hit him. It was not intentional. Q: What were you feeling? A: I was really scared at the time.
[48] Mr. Anchata corroborated that Mr. Hermosada had charged at the Defendant. He said that after the Defendant struck Mr. Hermosada with the bottle, about four to six of Mr. Hermosada’s friends came over and started hitting the Defendant and himself. They had all been in another car sitting in the parking lot. Mr. Anchata said that he did not see the Defendant hit anyone else other than Mr. Hermosada, and that he had himself taken some blows, got knocked down and suffered a black eye. According to Mr. Anchata, when he got up everyone was running around and the Defendant said to him, “Let’s go, we’re outnumbered.”
[49] As indicated, the police photos show a battered and bruised Defendant and Mr. Anchata. They certainly look like individuals who were beset upon by four to six others, and not like individuals whose only “fight” that day was the Defendant’s own sneak attack on another that ended as soon as it began. Between the two versions – i.e. the Defendant’s version and the several variations on Mr. Hermosada’s version – it is only the Defendant’s version that is credible and makes sense. It is also the only version that coincides with the photographic evidence produced by the police.
[50] I say this despite the fact that on the surface the Defendant sounds unbelievably naïve. He never seems to have clued in to the fact that although he had successive encounters with Ms. Gaoyen in the months preceding the incident, she had been keeping him away from her boyfriend. He never seems to have understood that Mr. Hermosada might have been irritated by his constant talking with her and sitting with her in the karaoke bar, or by his dancing with her (albeit in a group), and his seeming to want to delay her departure in the parking lot. While I do not fault the Defendant for failing to anticipate that Mr. Hermosada would work himself into a form of road rage and nearly kill them with his car and then approach him spoiling for a physical fight, he did miss all the signs.
[51] That said, the Defendant’s naivety adds to rather than detracts from his credibility. At the same time, Mr. Hermosada’s lack of credibility, his insistence on telling obviously false versions of the story despite being the supposed victim of the assault, and his surly and combative demeanor with both Crown counsel and defense counsel, likewise supports the Defendant’s version of events. That is, not only do I not believe Mr. Hermosada’s version, but as a witness Mr. Hermosada managed to display precisely the kind of simmering rage that the Defendant describes.
[52] In addition, although Ms. Gaoyen was quite protective of Mr. Hermosada, a number of the responses she provided in her testimony lend credence to his ongoing anger. She said that when Mr. Hermosada woke up in the hospital he was extremely angry. “He didn’t know what he was going to do,” was the way she put it. The one question which he asked and which stood out in her mind was, “Who were those men in the parking lot?” Of course, even asking it in this way puts a question mark over Mr. Hermosada’s own testimony in which he said he did not see anyone in the parking lot other than Ms. Gaoyen and the Defendant, and that he had no real memory of what hit him.
[53] Ms. Gaoyen testified that at that moment in the hospital she did not answer Mr. Hermosada truthfully; she told him she did not know who they were. It was obvious that Mr. Hermosada is a controlling and easily angered young man, and that Ms Gaoyen is painfully aware of his short temper. Although she was, and is, romantically involved with him, it was apparent in her testimony that she is also somewhat scared of provoking him. She said that her relationship with him depended on him not knowing that she was speaking or otherwise interacting with a man that Mr. Hermosada did not know, such as the Defendant.
IV. Self-defense
[54] In a case like this one, where the Defendant has testified on his own behalf, the Supreme Court of Canada’s ruling in R. v. W.(D.), [1991] 1 S.C.R. 742 applies. Here, however, I do not have to review the intricacies of the judgment by Cory J. in terms of how to weigh the competing sides of the story. I have already indicated that I believe the Defendant and do not believe the Crown’s civilian witnesses. The Defendant was under attack by an angry and violent Mr. Hermosada when he struck the blow that caused Mr. Hermosada’s injuries.
[55] The only question is whether the Defendant’s hitting of Mr. Hermosada with a beer bottle was proportionate to the threat he faced. In this I must consider that although Mr. Hermosada was the initial aggressor, and was certainly threatening to the Defendant, he was unarmed while the Defendant resorted to what functioned as a makeshift weapon.
[56] In weighing the proportionality of the Defendant’s reaction, I am reminded by defense counsel that a person under attack is not expected to “weigh to a nicety” the proportionality of his response: R. v. Baxter (1975), 27 C.C.C. (2d) 96 (Ont. C.A.). Mr. Hermosada had just driven a car at high speed right up to where the Defendant was standing, causing the Defendant to be pinned in place, with no easy escape, and to momentarily fear for his life. Evidently enraged, Mr. Hermosada then stepped out of his car and approached the Defendant in a physically aggressive way. The Defendant cannot be faulted for thinking that he was facing a violent confrontation with a man who was intent on doing him great harm. He took a swing at Mr. Hermosada with the bottle in his hand, apparently as an instinctive act of self-preservation.
[57] During final submissions, I asked both counsel if they thought Mr. Hermosada would have stopped in his tracks if the Defendant, who is not a particularly large man and who exudes a childlike innocence, had hit him with his hand rather than with a bottle. There is, of course, no way other than conjecture to answer that question, but for my part I tend to doubt that anything short of a serious blow would have stopped Mr. Hermosada. The Defendant did not grab the bottle to use as a weapon; he was drinking from it. When facing a violent attack on the spur of the moment he took a swing at his assailant with the bottle in his hand. In doing so, I find that he was acting in proportion to the threat he faced.
V. Disposition
[58] Considering all of the circumstances, I find that the Defendant acted in self-defense when he hit Mr. Hermosada with a bottle. I therefore find him not guilty of all charges.