CITATION: Her Majesty the Queen v. Kanagarajah, 2017 ONSC 5543

COURT FILE NO.: CR-16-940-0000

DATE: 20170919

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen

Ms. Melody Martin, for the Crown

• and -

Mohanaraj Kanagarajah

Mr. Alexander Hope, for the Accused

Accused

HEARD: September 12 & 18, 2017

REASONS FOR JUDGMENT

Conlan J.

I. Introduction

1In the early morning hours on November 5, 2015, at a bar in Port Elgin, Ontario, there was an argument about gas stations. Too much alcohol, evidently, can lead to stupid arguments.

2Unfortunately, one man, Blair Phillips, was hit in the face with a beer glass. A bleeding gash to the left cheek area resulted. Many stitches were required.

3The accused is charged with aggravated assault. The formal charge reads:

Mohanaraj Kanagarajah stands charged that on or about the 5^th day November, 2015 at the Town of Saugeen Shores in the said region did wound Blair Phillips thereby committing an aggravated assault contrary to Section 268 of the Criminal Code of Canada.

4The essential elements of this offence of aggravated assault, each of which must be proven by the prosecution beyond a reasonable doubt, are as follows:

i. that Mr. Kanagarajah applied force to Blair Phillips;

ii. that Mr. Phillips did not consent to the force that Mr. Kanagarajah applied;

iii. that Mr. Kanagarajah knew that Mr. Phillips did not consent to the force that Mr. Kanagarajah applied; and

iv. that the force that Mr. Kanagarajah applied wounded Mr. Phillips.

5None of the above is in dispute. It is certain that Mr. Kanagarajah struck Mr. Phillips, without the latter’s consent, on the face with a beer glass, causing Mr. Phillips to be wounded.

6The real issue in this case is self-defence.

7There is no question that self-defence has an air of reality on the evidence adduced at trial, hence, the burden is not on Mr. Kanagarajah to prove that he acted in self-defence. Rather, the burden rests with the Crown to prove, beyond a reasonable doubt, that he did not.

8Of course, Mr. Kanagarajah, like all persons accused of crimes in this country, is presumed to be innocent.

9The law of self-defence is more simple these days. In Canada, a person is not guilty of an offence if the following three things are present: (i) they believe on reasonable grounds that force or a threat of force is being used/made against them, and (ii) they commit an act to defend or protect themselves from that use or threat of force, and (iii) the act committed is reasonable in the circumstances. Subsection 34(1) of the Criminal Code.

10Subsection 34(2) sets out some factors that the Court shall consider in determining the reasonableness of the act committed.

II. Analysis

11This case was tried, without a jury, in Walkerton over two days. That is a relatively short trial, thanks largely to the hard work of counsel in narrowing the issues to be decided.

12For the Crown, I heard from Mr. Phillips, the bartender at the place where the incident occurred (Jason Reichert), two constables with the Saugeen Shores Police Service – Michael Cuillerier and Chantel Primeau, and Edward O’Brien, a witness to what happened at the bar.

13For the Defence, I heard from Mr. Kanagarajah.

14The evidence at trial may be summarized as follows.

15The alleged victim, Blair Phillips, is 48 years old. He is and was back in November 2015 about six feet tall and about 180 pounds. His family company builds gasoline stations. Although not residing in this area, he and other employees were in Port Elgin in November 2015 for work purposes.

16During the evening of November 4, 2015, they had dinner at Boston Pizza in Port Elgin. In direct examination at trial, Mr. Phillips testified that he drank five or six pints of beer and maybe a couple shots of booze at Boston Pizza. He was “starting to feel pretty good”, in his words.

17While sitting at the bar at Boston Pizza, after dinner, there were unfriendly words exchanged between Norm, a friend and co-worker of Mr. Phillips, and the accused. Mr. Kanagarajah was also at the bar with another male.

18The accused is shorter than Mr. Phillips and, at the time, weighed less.

19Mr. Phillips and co-worker and friend Norm then went to another bar called the Queen’s. In direct examination at trial, Mr. Phillips testified that he drank a couple more beers. In his words, he was “getting intoxicated”.

20Mr. Phillips and Norm then went to another bar called Chester’s. Mr. Phillips had a couple or a few more drinks of draft beer.

21Mr. Kanagarajah and his friend were also at Chester’s. According to Mr. Phillips, he and the accused argued about gas stations. They were sitting close to each other at the bar. As Mr. Phillips turned to ask Norm to leave, he got hit in the left side of his face. He was injured and was taken to the hospital, first to Southampton and then to London, Ontario.

22Mr. Phillips had shards of glass embedded in his face. Thirteen stitches were required. He testified that the left side of his face is still numb today.

23The photographs, Exhibit 1, clearly show a wound – a large open and bleeding gash on the left side of Mr. Phillips’ face.

24In direct examination at trial, Mr. Phillips denied making any physical contact with the accused before he was struck.

25In cross-examination, however, Mr. Phillips agreed that it is possible that he “straight-armed” Mr. Kanagarajah at Chester’s, before being struck. Later in cross-examination, he again agreed that it is possible that he “assaulted” the accused before he was hit.

26In direct examination at trial, Mr. Phillips used various expressions to describe his level of drunkenness and his mood while at Chester’s that evening: “intoxicated”, “a little tipsy”, “argumentative”, and “not really” having a clear recollection of things.

27In cross-examination at trial, Mr. Phillips admitted that he told the police that he had drank eight pints of beer and two shots of alcohol at Boston Pizza, all over just two to two and one-half hours, which if correct would bring his total alcohol consumption that evening to twelve pints of beer and two shots.

28In cross-examination at trial, Mr. Phillips acknowledged that he drank considerably more alcohol that evening than usual for him, and that consequently he has not much of a memory of what happened at Chester’s. Mr. Phillips agreed with Defence counsel that the events at Chester’s are a “haze” in his mind, and there may be blanks in his memories of what happened there. At another point in cross-examination, Mr. Phillips agreed with Mr. Hope that his memory of what happened that evening is “severely affected” by alcohol.

29The bartender at Chester’s, Jason Reichert, gave evidence at trial that differs considerably from that of Mr. Phillips. According to the bartender, a neutral and sober witness, Mr. Phillips and Norm had to be separated from the accused and his friend, Mr. O’Brien (not the same person that the accused was with while sitting at the bar at Boston Pizza). Then, at one point, Mr. Phillips got up from his bar seat and moved quickly towards the accused, as if to sit immediately beside Mr. Kanagarajah. Mr. Phillips pushed the accused in the chest, knocking Mr. Kanagarajah backwards in his bar seat. Instantly, in response, the accused struck Mr. Phillips in the face with a beer glass.

30In cross-examination at trial, the bartender described the push of the accused by Mr. Phillips as “forceful”. He agreed with the descriptor “straight-arm”. He also described the reaction of the accused as “reflexive” and a “direct and instant response to the push to the chest”.

31Mr. Kanagarajah struck Mr. Phillips only once.

32Nothing much turns on the police evidence. Officer Cuillerier testified that the accused voluntarily returned to the scene after having left Chester’s and showed signs of alcohol consumption – an odour on his breath, glossy eyes, slurred speech, and slight unsteadiness on the feet. He registered an “alert” but not a “fail” on a roadside screening device test. Officer Primeau described Mr. Phillips as being “somewhat intoxicated”.

33Mr. O’Brien’s evidence was fairly consistent with that of the bartender. 64 years old and having acquired a brain injury a while back, Mr. O’Brien testified in a clear and confident manner. I saw and heard nothing in his evidence that suggested that it was tainted by his previous head injury.

34According to Mr. O’Brien, who was sitting near the other involved persons at Boston Pizza earlier in the evening in question, Mr. Phillips and his friend were clearly looking for a fight. They argued with the accused and then with Mr. O’Brien himself. Mr. Phillips’ friend was the real troublemaker, aided by Mr. Phillips.

35After Boston Pizza, Mr. O’Brien and Mr. Kanagarajah met at Chester’s.

36When Mr. Phillips and his friend arrived, they started arguing again.

37All sitting at the bar at Chester’s, from left to right as one faces the bartender, there was Mr. Phillips, then his friend, then some space, then Mr. O’Brien, and then the accused. Amanda, the bartender from Boston Pizza, was also at Chester’s but had left.

38The arguing intensified. Very quickly, Mr. Phillips and his friend jumped up. The accused also stood up but kept facing straight ahead towards the bar. Mr. Phillips and his friend lunged at Mr. Kanagarajah. The friend, Norm, fell down due to drunkenness. As Mr. Phillips approached closer to the accused, Mr. Kanagarajah swung or turned to his left and either swatted his beer glass or swung his arm and hand holding the beer glass. Either way, the beer glass struck Mr. Phillips in the face, causing him to bleed. The accused quickly left the scene, looking scarred and panicked.

39Mr. O’Brien drank two and one-half beers that night. He was certainly less intoxicated than Mr. Phillips, his friend Norm and Mr. Kanagarajah.

40Mr. O’Brien confirmed that Mr. Kanagarajah was the smallest of the four persons involved at Boston Pizza – Mr. Phillips, his friend, the accused and his friend.

41Finally, according to the accused, definitely shorter and lighter than Mr. Phillips at the time, it was mainly Mr. Phillips’ friend and Mr. Kanagarajah’s friend, both named “Norm”, who were arguing at Boston Pizza. Later, at Chester’s after some more arguing, Mr. Phillips and his friend got up from their seats at the bar. They lunged at Mr. Kanagarajah. The friend fell down. Mr. Phillips pushed the chest of the accused, causing Mr. Kanagarajah to be knocked backwards a little. Trying to block Mr. Phillips and/or get him off, and scarred, the accused hit Mr. Phillips with the beer glass that the accused had been drinking from. There was no intention to use a weapon as Mr. Kanagarajah was not aware in that moment of where the beer glass was.

42That is likely why the accused first used the word “accidentally” to describe the hit to Mr. Phillips’ face. Later, he clarified that he struck Mr. Phillips deliberately but out of self-defence.

43Mr. Kanagarajah has a criminal record which includes dated convictions between 2006 and 2008 for unauthorized possession of credit cards, breach of bail and fraud. He had no recollection during cross-examination at trial of being convicted as well of another breach of bail and obstruct police.

44In cross-examination at trial, the accused admitted to having a “pretty bad” memory and being “confused”. Apparently, after the night in question, something happened to Mr. Kanagarajah which he described as “psychosis”, adversely affecting his memory generally and that of the night in question. No further details were provided to the Court.

45Further, the accused was under the influence of alcohol that evening, having consumed a giant-sized beer and perhaps another pint of beer at Boston Pizza, plus more beer at Chester’s.

46My assessment of the trial evidence is as follows.

47I accept the evidence of the bartender. He has no horse in this race. He was sober that evening. He has lots of experience as a bartender. He testified in a calm and confident manner. Being a Crown witness, he was not challenged at all by the prosecution.

48I accept the evidence of the two police officers that both Mr. Phillips and Mr. Kanagarajah were under the influence of alcohol and both were intoxicated to some degree. Neither officer was challenged by either side.

49I accept the evidence of Mr. O’Brien, except where it differs on a material point from that of the bartender, Mr. Reichert. The differences are largely immaterial and include whether the bartender separated the men at the bar at Chester’s (Mr. Reichert said that he did, while Mr. O’Brien stated that he could not recall that), the precise order of seating at the bar at Chester’s (Mr. O’Brien denied that Mr. Phillips was immediately beside the accused just before the glass-hitting, as testified to by the bartender), whether Mr. Phillips made contact with the accused after he lunged or moved quickly towards him at Chester’s (Mr. Reichert described the straight-arm to the chest, while Mr. O’Brien testified that he did not think that any contact was made), and whether Mr. Kanagarajah was standing or sitting when Mr. Phillips was hit in the face with the beer glass (Mr. O’Brien, but not Mr. Reichert, stated that the accused had got up from his seat at the bar at Chester’s just after Mr. Phillips and his friend jumped up).

50Of those differences, the only potentially important one is whether Mr. Phillips made contact with the accused after he lunged or moved quickly towards him.

51The evidence of Mr. Phillips cannot be safely relied upon.

52First, by his own admissions at trial he drank a lot of alcohol that evening and cannot remember much of what happened at Chester’s.

53Second, he has been inconsistent at times on key points of the interactions with the accused. For example, he was adamant at trial that Mr. Kanagarajah and his friend arrived at Chester’s after Mr. Phillips and his friend Norm, making it seem of course like the accused sat near Mr. Phillips at the bar in an effort to somehow antagonize Mr. Phillips and/or Norm. But, at the preliminary inquiry, Mr. Phillips stated the opposite – that the accused and his friend were already at Chester’s when Mr. Phillips and Norm arrived, which I accept as a fact given the other evidence adduced at trial. As another example, Mr. Phillips mentioned nothing in his trial evidence about Norm exchanging unfriendly words with the accused at Chester’s (he had testified to that occurring only earlier at Boston Pizza). Yet, at the preliminary inquiry, Mr. Phillips stated that Norm was “chirping” at/with Mr. Kanagarajah at Chester’s, before Mr. Phillips was struck by the accused.

54Third and finally, Mr. Phillips’ evidence stands contrary to that of the bartender, which evidence I accept. It also stands contrary to the evidence of Mr. O’Brien, whose evidence I largely accept.

55The evidence of Mr. Kanagarajah, if believed, must lead to an acquittal. Even if I do not accept his evidence, if it leaves me with a reasonable doubt, the accused must be found not guilty. If I completely reject the accused’s evidence, I must still find him not guilty unless the rest of the evidence at trial that I do accept persuades me of his guilt beyond a reasonable doubt.

56Like Mr. Phillips, much of the evidence of Mr. Kanagarajah cannot be relied upon. Standing alone, I neither accept it nor does it leave me with a reasonable doubt.

57He has a criminal record for offences of dishonesty. His memory is poor. He was intoxicated on the night in question. He was clearly confused at times during his trial testimony. Some of his testimony appeared to be made-up. For example, when caught in cross-examination about a faulty timeline, Mr. Kanagarajah suddenly testified, for the first time, that he sat in his car at the gas station and contemplated for close to a half-hour after leaving Boston Pizza and before arriving at Chester’s. It was plainly unbelievable evidence designed to account for an erroneous timeline of when the glass-hitting incident occurred at Chester’s. And, finally, some of his evidence makes no common sense, such as his testimony that he did not initially stand up at the bar at Chester’s to defend himself or to ready himself for an attack. Of course he did. Most persons would when two fellas jump up from their bar seats on the heels of some arguing.

58For these reasons, I accept only those parts of the accused’s evidence that are supported by or consistent with the evidence of Mr. Reichert and/or Mr. O’Brien.

59My key findings of fact are as follows.

60On the evidence in common between the bartender and Mr. O’Brien, I find that, at least at Chester’s, Mr. Phillips was the aggressor. He was likely more intoxicated than Mr. Kanagarajah. He was the one who moved towards the accused and confronted him. He was the one who turned a verbal argument into a physical confrontation. He lunged at the accused.

61From where Mr. O’Brien was standing, directly behind Mr. Kanagarajah who was still at the bar, likely standing by this point, Mr. O’Brien simply could not see for certain whether Mr. Phillips made contact with the accused. Although coming around the bar at the time, with his cold-sober mind and his focus at that moment on what was transpiring and no longer on his bar closing duties, I am confident that Mr. Reichert had a better view.

62Thus, I accept the evidence of Mr. Reichert and find that Mr. Phillips forcefully pushed or straight-armed Mr. Kanagarajah. That caused the accused to move backwards in his bar seat. As an immediate reaction, Mr. Kanagarajah lifted his right arm and hand and struck Mr. Phillips one time in the face. Unfortunately, when he did that, he was holding the Stella beer glass that he had been drinking from.

63Turning to subsections 34(1) and (2) of the Criminal Code, those sections provide as follows.

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.

64The Crown concedes that subsection 34(1)(a) is established here, or at least that there is a reasonable doubt in that regard.

65Thus, the case turns on subsections 34(1)(b) and (c): purpose and proportionality.

66On the former, I accept the evidence of the accused that he struck Mr. Phillips to defend himself, that is, to block further aggression by Mr. Phillips and/or to get Mr. Phillips off/away from him.

67Notwithstanding my concerns about the evidence of Mr. Kanagarajah, as expressed above, that testimony about the purpose of his act is entirely consistent with that of the bartender, Mr. Reichert, and Mr. O’Brien.

68Mr. Reichert testified that, from what he observed, the striking of Mr. Phillips by the accused was an immediate, an instantaneous, a reflexive or instinctive act and a direct response to the accused having been assaulted (pushed in the chest with enough force to be knocked backwards).

69Mr. O’Brien used the expression that the striking of Mr. Phillips was a part of Mr. Kanagarajah swinging or turning to his left in order to confront or face the oncoming situation, namely, the attacking lunge by Mr. Phillips.

70There is nothing in the evidence to suggest that Mr. Kanagarajah would have even considered striking Mr. Phillips but for the latter jumping up and quickly lunging at him in an aggressive manner. There is nothing in the evidence to suggest that the act committed by the accused was simply out of anger and/or retaliation and not to protect or defend himself.

71I conclude that subsection 34(1)(b) has been met. More accurately put, that criterion has not been proven absent by the Crown.

72Turning to subsection 34(1)(c), was the act committed by Mr. Kanagarajah reasonable in the circumstances? For simplicity, I referred to this above as proportionality.

73I conclude that it was. I, at least, have a reasonable doubt in that regard.

74This was not an accident. Mr. Kanagarajah intended to strike Mr. Phillips in order to protect himself. But he certainly did not intend to wound or cause bodily harm to Mr. Phillips, and I would go further to say that I think it is likely that Mr. Kanagarajah did not actually contemplate hitting Mr. Phillips with the beer glass as opposed to simply his hand or fist.

75It all happened very, very quickly. After being lunged at and pushed backwards, the accused raised his right hand, a hand that happened to be holding the beer glass that he was drinking from, swung at and hit Mr. Phillips in the face, with very unfortunate results.

76The nature of the force or threat facing Mr. Kanagarajah was significant. He had been physically assaulted by Mr. Phillips.

77This was relatively close quarters at the bar at Chester’s. Once Mr. Phillips lunged at Mr. Kanagarajah, there were no other ready means available for the accused to respond to what could have reasonably been anticipated by him to be further violence.

78That whole evening, the accused was a participant to some degree, but the clear protagonists were Mr. Phillips and his friend Norm. The evidence of Mr. Reichert and Mr. O’Brien establishes that fact.

79Mr. Phillips was certainly bigger than Mr. Kanagarajah, significantly so.

80Although resulting in very unfortunate injuries to Mr. Phillips, Mr. Kanagarajah reacted with one single blow.

81On balance, those factors under subsection 34(2) that are relevant here work in favour of a finding that the act committed by the accused was a reasonable one. After all, we are not to measure the reasonableness of the reaction of someone in Mr. Kanagarajah’s shoes with a laser pointer and a ruler.

III. Conclusion

82I am not satisfied that the Crown has proven beyond a reasonable doubt that Mr. Kanagarajah, in striking Mr. Phillips one time in the face while holding a beer glass, was not acting in lawful self-defence.

83For these reasons, Mr. Kanagarajah is found not guilty of the charge of aggravated assault.

Conlan J.