Court File and Parties

COURT FILE NO.: CR-17-40000530-0000 DATE: 20180309

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – TOLA DIRK PAUL, Applicant

Counsel: John Rinaldi, for Her Majesty The Queen Maurice Mattis, for the Applicant

HEARD: March 6, 2018

RULING ON APPLICATION TO PUT THE DEFENCE OF SELF-DEFENCE BEFORE THE JURY

DUNNET J. (Orally)

Overview

[1] The applicant is charged with aggravated assault x 2, assault with a weapon x 2 and possession of a weapon for a dangerous purpose. He brings this application to have the defence of self-defence put to the jury on the charges of aggravated assault and assault with a weapon.

[2] The Crown opposes the application on the basis that the defence of self-defence lacks an evidential foundation and air of reality.

Applicable Law

[3] In R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, the majority of the Supreme Court of Canada held that a defence should be put to a jury if, and only if, there is an evidential foundation for it. A trial judge must put to a jury all defences that arise on the facts, but the judge has a positive duty to keep from the jury defences lacking an evidential foundation or air of reality even if the defence is the only defence open to the accused.

[4] In applying the air of reality test, the trial judge must consider the totality of the evidence and assume the evidence relied upon by the accused to be true. The threshold determination by the trial judge is not aimed at deciding the substantive merits of the defence. The trial judge does not make determinations about the credibility of witnesses, weigh the evidence, make findings of fact or draw determinate factual inferences.

[5] At para. 83 of Cinous, the court explained that before putting a defence to a jury, the trial judge has a duty to ask not just whether there is evidence in some general sense, but whether there is evidence that is reasonably capable of supporting an acquittal.

[6] In R.v. Bengy, 2015 ONCA 397, 325 C.C.C. (3d) 22, at paras. 28 and 29, the Ontario Court of Appeal set out the three basic requirements of self-defence under s. 34 of the Criminal Code. Each of the following requirements has a subjective and objective component:

(i) Reasonable belief (34(1)(a)): the accused must reasonably believe that force or threat of force is being used against him or someone else;

(ii) Defensive purpose (34(1)(b)): the subjective purpose for responding to the threat must be to protect oneself or others; and

(iii) Reasonable response (34(c)): the act committed must be objectively reasonable in the circumstances.

[7] The Court of Appeal held that when the first two paragraphs are met, the success of the defence will hinge on the question of the reasonableness of the responsive act. Further, to inform this inquiry, s. 34(2) provides a non-exhaustive list of relevant considerations. The relevance of any factor, enumerated or not, will be a matter for the trier of fact to determine.

[8] In focusing on whether the evidence is reasonably capable of supporting the inferences required for the defence to succeed, the trial judge must be cognizant that this is a low threshold.

[9] In R. v. Cunha, 20216 ONCA 491, 2016 ONCA 491, 337 C.C.C. (3d) 7 at paras. 10 and 25, the Ontario Court of Appeal directed that in assessing self-defence, it is important to pay close attention to the entire factual context. Further, when considering the reasonableness of the accused’s use of defensive force, it is equally important to be alive to the fact that people in stressful and dangerous situations do not have time for subtle reflection.

Evidence at Trial

[10] At trial, the jury heard the testimony of Tequan Campbell and the applicant. Three surveillance videos depicting the events from different perspectives were also introduced into evidence.

[11] Tequan Campbell testified that on April 17, 2016 he was working as a security guard at the African Caribbean Restaurant known as Africa House, which was located in a strip mall at 2111 Jane Street in Toronto.

[12] The applicant entered the bar with three men – Kristian Gatto, a man he called Knox or “the South Park guy” and a man he called Richard.

[13] When the applicant wanted to leave the bar to go upstairs and outside with a beer in his hand, Mr. Campbell stopped him and asked him to leave his beer downstairs in the bar. The applicant refused, because he had paid for the beer. A man whom Mr. Campbell knew as “Tall P” told the applicant to leave his beer in the bar beside Tall P’s drink. Then Tall P ran upstairs.

[14] The applicant became upset and agitated and went up the stairs with his beer.

[15] When Mr. Campbell heard two voices yelling, he went upstairs and looked outside the door. Tall P was on his cell phone and he was arguing with Mr. Gatto and the South Park guy.

[16] Mr. Campbell testified that he saw the applicant coming north approaching Africa House at a fast pace. He had a machete in his hand. When he was ten feet from Tall P, a man Mr. Campbell referred to as “the dreadlocks guy” restrained him and calmed him down. The applicant turned around and walked south towards the parking lot.

[17] Mr. Campbell went inside Africa House and called Louise, the owner of the bar. When she came outside, she was tapping on Tall P’s arm telling him to come inside, but Tall P refused. Others in the bar started coming outside and walking south towards the parking lot.

[18] Mr. Campbell saw Tall P and Mr. Gatto on the sidewalk next to the parking lot standing at arm’s length from one another having an argument. Mr. Gatto lifted up his shirt. He was holding the handle of a machete which was tucked into the front waistband of his pants.

[19] Mr. Campbell recalled seeing the applicant resurface running north with a machete in his hand. Mr. Campbell started running north with others who were also running north. As he was running, Mr. Campbell saw the applicant chasing Tall P who was heading for the door to Africa House. The applicant caught up with Tall P at the door and “chopped” him with the machete.

[20] Mr. Campbell also recalled that after the “chop,” he heard Garthmore Stephens, whom he knew by the name of “Foot,” say something to the applicant and the applicant say something to Foot. Then he saw the applicant “chop” Foot with a machete in the back of his head before the applicant ran south towards the parking lot.

[21] The applicant entered an SUV vehicle, which had been parked in the parking lot in reverse, and the SUV left the parking lot.

[22] Mr. Campbell was shown the surveillance video which depicted events outside the door to Africa House. He testified that at 11.04.33, the applicant is seen coming out of the door followed by Tall P almost immediately. Mr. Gatto and the South Park guy are exchanging words with Tall P who is on his cell phone.

[23] At 11.05.05, the applicant disappears from the screen. Mr. Campbell testified that he called Louise who is seen tapping Tall P on the arm trying to get him to go back into the bar.

[24] At 11.06.38, the machete is in view on the screen and Tall P is seen moving backwards towards the door. At 11.07, others are coming out the door, including Mr. Campbell, and are looking south towards the parking lot.

[25] Tall P disappears from view and Mr. Campbell and others start to walk south out of view. At 11.08.48, others, including Mr. Campbell, are running north and the applicant is seen chasing Tall P who is running towards the door to Africa House.

[26] Mr. Campbell testified that at 11.08.49, the applicant “chopped” Tall P’s hand before Tall P was able to open the door. Tall P went inside the bar. At 11.09.00 the applicant is seen going in the door with the machete in his hand. Eight seconds later, he comes back out and walks south.

[27] At 11.09.33, Tall P is seen coming out the door holding his hand. He bends down and picks up an object in front of the door before walking north towards Lucky’s bar. At 11.09.44, the applicant is seen running north. Mr. Campbell testified that he saw the applicant chasing Tall P who went into Lucky’s.

[28] Mr. Campbell was shown the video looking southwest from the entrance to Africa House. He testified that at 1.22, the applicant is walking north on the sidewalk beside the parking lot with a machete in his hand. He is restrained by the dreadlocks guy.

[29] At 3.12, Mr. Gatto is walking towards Tall P on the sidewalk. At 3.13, Mr. Gatto lifts up his shirt and there is a machete in his waistband.

[30] At 3.18, others are walking south on the sidewalk, including Mr. Campbell. He testified that there was a “tussle” between the applicant and Tall P taking place between two parked cars in the parking lot. At 3.41, others start to run north. Behind them, the applicant is seen chasing Tall P and the applicant has a machete in his hand.

[31] At 4.06, the applicant is walking south on the sidewalk with a machete in his hand. At 4.36, he is walking north on the sidewalk with the machete. At 5.02, he is walking south on the sidewalk with the machete.

[32] Mr. Campbell was shown the video looking northwest from the sidewalk beside the parking lot towards the entrance to Africa House. He testified that at 0.01, the applicant is seen walking south on the sidewalk with a beer and cigarette in one hand.

[33] At 1.22, the applicant is walking north on the sidewalk with a machete in his hand. At 1.36, he is walking south on the sidewalk with the machete. At 1.53, he is walking north with nothing in his hand other than a cigarette and at 2.17, he is walking south hastily.

[34] At 2.53, Tall P is walking north on the sidewalk and at 2.55, he is walking south. At 3.13, Tall P and Mr. Gatto are seen together and at 3.15, Tall P extends his right arm towards Mr. Gatto.

[35] At 3.40, Mr. Campbell and others are running north followed by the applicant who is chasing Tall P with a machete. At 4.06, the applicant is walking south with the machete.

[36] At 4.36, the applicant is running north on the sidewalk with a machete. At 5.02, he is walking south with the machete.

[37] In cross-examination, Mr. Campbell agreed that after Tall P came out of the door to Africa House behind the applicant, he was having a “face-to-face” with the applicant and his shoulder touched the applicant’s shoulder. He also agreed that Tall P’s cell phone was in his left hand and there was something in his right hand.

[38] When he was asked to review the video looking northwest, Mr. Campbell testified that at 3.15, Tall P is standing six inches away from Mr. Gatto and they are face to face.

[39] Mr. Campbell recalled seeing Tall P and the applicant “tussling” in the parking lot between the SUV and another car. Tall P had a machete in one hand and a knife in the other. The applicant had a hammer.

[40] He testified that when Foot was injured, Mr. Campbell did not remember exactly where he was in the parking lot. He recalled that Foot was in between Africa House and Lucky’s. Mr. Campbell agreed that in his statement to the police, he said that he saw the applicant “chop” Foot in the head and he thought Foot’s head was “gonna come off.” When he went over to check, it did not look like it was a bad chop, but he was bleeding quite a bit. Mr. Campbell testified that he did not see the wound, but he saw blood seeping through Foot’s fingers.

[41] In re-examination, Mr. Campbell testified that he did not know how Tall P got the machete. When he was shown the video looking northwest commencing at 3.12, Mr. Campbell agreed that Tall P is interacting with Mr. Gatto. Mr. Gatto lifts up his shirt and his left hand is in his waistband. Tall P’s head is looking down towards Mr. Gatto’s waist. Tall P then raises his head, moves back and extends his right arm towards Mr. Gatto. There is a shiny object in his hand.

[42] The agreed statement of facts entered as an exhibit at trial stated that as a result of the injury to Tall P, he required surgery to repair the muscles, tendons and nerves to his hand and was deemed to require plastic surgery to repair the hand completely. As a result of the injury to Foot, he required three staples to close the wound to the back of his head. Mr. Gatto received a wound to his upper abdomen approximately three inches deep, which was more consistent with a stab wound than a wound caused by a slashing with a machete.

[43] The applicant’s evidence was that he went to Africa House that night with three friends. He had been in the bar for forty-five minutes when he was going out to have a cigarette. Mr. Campbell asked him to leave his drink downstairs, but he wanted to leave it on the ledge at the top of the staircase because he had done that before.

[44] As he walked upstairs, Tall P was walking behind him and said, “All you fucking guys do not listen. You just want to do what you feel like.” Tall P was swearing at the applicant and the applicant was swearing back at him. Mid way up the stairs, Tall P started threatening the applicant and pulled a knife out of his pocket with the blade sticking out.

[45] The applicant walked outside first and Tall P was behind him. Tall P walked by the applicant and was touching him a little.

[46] Mr. Gatto and the South Park guy were already outside and they started exchanging words with the applicant. Tall P was threatening the applicant, saying that he was going to stab him. The blade of the knife was not out at that point. The applicant heard Tall P on his cell phone asking someone to “come and link him up.”

[47] The applicant walked south to the SUV and retrieved a machete from the back of the vehicle. He was walking back to the entrance to Africa House to scare off Tall P when the dreadlocks guy stopped him and told him to relax. When he calmed down, he put the machete in the SUV.

[48] The applicant testified that he walked back towards Tall P with a cigarette in one hand and nothing in the other. Tall P was still standing at the entrance to Africa House talking to Mr. Gatto. The applicant testified that Tall P was still threatening him with the knife and he was scared.

[49] He returned to the SUV and got into the driver’s seat to listen to music and smoke a cigarette. He heard someone say, “These guys stabbed me,” and recognized the voice of Mr. Gatto. He “poked” his head out and saw Tall P running towards him with a machete in one hand and a knife in the other.

[50] Tall P swung at him with the machete. The applicant ducked and the machete hit the door to the SUV and fell. The applicant reached for the sledge hammer inside the SUV. Tall P “swung” the knife which struck the applicant on his back. The applicant swung the hammer, which touched Tall P and dropped from his hand.

[51] When the applicant picked up the machete, Tall P ran away. The applicant testified that he caught up to him at the entrance to Africa House. He did not know if Tall P was going to rush him with his knife and he was still afraid. The applicant swung the machete at Tall P and cut his hand.

[52] After Tall P went inside Africa House, the applicant went in to see if Tall P was coming back upstairs with anybody. The applicant came back outside and went to the parking lot where he saw the gash to Mr. Gatto’s abdomen.

[53] Then he heard someone shout, “He’s coming,” and saw Tall P come out of the door to Africa House. Tall P picked up something and walked north towards Lucky’s. He saw four men walking to Lucky’s and the dreadlocks guy standing close to Lucky’s and backing up from the men. He went to Lucky’s to help his friend.

[54] He could see three of the men with knives, including Foot, and Tall P who was behind them. The three men with knives rushed up to him and he swung the machete so they would “back off.” He said, “That is how I ended up injuring Foot.”

[55] The applicant’s evidence was that he ran to Lucky’s because Mr. Gatto had been injured and the men were threatening his friends.

[56] In cross-examination, he agreed that he had the machete three times: first, when he was stopped by Richard; second, when he “chopped” Tall P; and third, when he went to help Richard who had knives pulled on him.

[57] When he left for Africa House that night, he knew that the machete was in the SUV because it was always there and he knew that the hammer was in the driver’s side door.

[58] He testified that when Tall P threatened him on the staircase, he took the threat seriously and was scared. He thought that Tall P was going to stab him. He agreed that he did not run away. He said that he wanted to see what Tall P was up to.

[59] In cross-examination, the applicant denied that Mr. Campbell told him to leave his beer downstairs at the bar. He added that before he went upstairs, Tall P had said something to one of his friends at the bar.

[60] He testified that when Tall P said, “You never listen,” it had nothing to do with the drink in his hand. He agreed that Tall P never stabbed him or swung at him on the staircase.

[61] He also agreed that he, Mr. Gatto and the South Park guy were standing in a semi-circle around Tall P outside the entrance to Africa House. He maintained that Tall P had a knife in his hand the whole time. He did not tell his friends about the threat. He did not want to leave because he had just arrived at the bar.

[62] The applicant’s evidence was that when he first ran towards Tall P with the machete, he wanted to cool him off. He did not think that it might escalate things. He said, “I was the one being threatened.” He agreed that after he put the machete back in the SUV and walked towards Tall P, he was still standing in the same spot by the door to Africa House.

[63] When the applicant was asked if he thought about getting out of there, he said that Tall P was not threatening anyone but him. He got into the driver’s seat to listen to music and he did not think that Tall P would come after him.

[64] He denied that when he went towards Tall P with the machete both times, Tall P was retreating. He testified, “He was just stepping back. He was not retreating.”

[65] He agreed that before he “chopped” Tall P, Tall P was running away from him “pretty fast.” He testified that he thought Tall P was running to get something.

[66] He swung the machete at Tall P because Tall P had come at him with the machete and the knife and he knew that Mr. Gatto had been stabbed.

[67] When it was suggested to the applicant that he could have stopped and turned away, he said, “I thought Tall P was probably going to rush me.”

[68] When it was pointed out to him on the video looking southwest from the entrance to Africa House that the dreadlocks guy was nowhere near Lucky’s when he said he went there to defend him because the dreadlocks guy was in the parking lot at the time, he said, “If it was not dreads, it was the South Park guy.”

Positions of the Parties

[69] The position of the applicant is that there is an evidential foundation for self-defence of himself and others with respect to the charges of aggravated assault and assault with a weapon on Tall P.

[70] It is submitted that the applicant was threatened by Tall P with a knife and Tall P is considerably taller than the applicant. Nonetheless, the applicant left the scene in front of the entrance door to Africa House and went into the SUV to relax and listen to music. After he heard Mr. Gatto yell, “I got stabbed,” and Tall P came after him with a machete and a knife, he responded by attacking Tall P with a hammer. When the machete fell from Tall P’s hands, he chased him. Seconds later, the applicant slashed him with a machete.

[71] The applicant submits that as the applicant was chasing Tall P, he believed that Tall P still had the knife in his hand and could come back and attack him again or come back with others to attack him and his friends. It is submitted that the events happened at a fast pace in a stressful situation and there was little time for reflection.

[72] The applicant also contends that there is an evidential foundation for self-defence of himself and others with respect to the charges of aggravated assault and assault with a weapon on Foot.

[73] It is asserted that his actions should be considered in the context of what happened earlier involving the applicant and Tall P. His position is that after he “chopped” Tall P, he saw Tall P come out of Africa House and pick up an object before heading to Lucky’s. He did not know what the object was.

[74] Others went to Lucky’s at the same time, including Foot. The men with knives were approaching either the dreadlocks guy or the South Park guy and his response was to protect his friends and himself by swinging the machete, which struck Foot in the back of the head.

[75] The position of the Crown is that there is no air of reality to the defence of self-defence. The focus of the Crown’s argument is that accepting the evidence of the applicant at its highest, the acts he committed were not objectively reasonable in the circumstances.

[76] The Crown submits that when the applicant was attacked by Tall P, he defended himself with the hammer. When the hammer dropped to the ground, he grabbed the machete and started chasing Tall P who ran away from him. It is submitted that the applicant continued to run after Tall P out of revenge and retribution.

[77] The Crown’s contention is that before he started to chase Tall P, the applicant had already defended himself. The chain of events was broken. The chop to Tall P was not necessary in the objective sense and everything else that happened flowed from that action.

[78] The Crown takes issue with the suggestion that the applicant removed himself from the threat by getting into the SUV. It is submitted that such an argument ignores what had happened when the applicant first approached Tall P with the machete “to scare him off” and the video surveillance shows Tall P retreating backwards into the door to the bar.

Analysis

[79] These events originated when the applicant left the bar with a bottle of beer. The applicant denied the suggestion that Mr. Campbell never said it was okay to leave his beer upstairs. On the stairs, Tall P said to him, “All you fucking guys do not listen. You just want to do what you feel like” and Tall P pulled out a knife and threatened to stab him.

[80] In this case, the video surveillance evidence is helpful in understanding the sequence and timing of events. When the applicant comes out of the bar followed by Tall P, the applicant, Mr. Gatto and the South Park guy stand in a semi-circle around Tall P. The applicant leaves his friends behind with Tall P and admittedly does not tell them about the threat.

[81] He goes to the SUV to get a machete to “cool down” Tall P. There is no suggestion at this point from the video evidence that Tall P has made an aggressive movement towards anyone. He is on his cell phone.

[82] In the almost six minutes after the applicant said that he had been threatened with a knife and was scared, he did not leave or call the police. His evidence was that he did not want to leave.

[83] Before the interaction between Tall P and Mr. Gatto, Tall P is on his cell phone and speaking to the applicant’s friends on the sidewalk beside the parking lot. At that point, there is nothing on the videos to suggest any aggressive movements by Tall P towards the applicant, other than the evidence of the applicant that there was a threat on the stairs which continued.

[84] Before Tall P’s interaction with Mr. Gatto, Tall P is not seen with a weapon or brandishing a weapon or swinging at weapon at anyone.

[85] After the “tussle” between Tall P and Mr. Gatto, which the applicant did not see, everything changed. The applicant testified that he heard someone yell that he was stabbed. He did not see the injury to Mr. Gatto until after he “chopped” Tall P.

[86] I agree with Crown counsel’s submission that the fight in the parking lot between Tall P and the applicant was almost consensual. Tall P had a machete and a knife. The applicant had a sledge hammer. When Tall P swung the machete at the applicant, he ducked and the machete hit the car and dropped on the ground. The applicant had the opportunity to leave and he failed to do so.

[87] The applicant swung the hammer at Tall P and it touched him. Then he picked up the machete and started running after Tall P who was running away from him. By that time, the threat was over. When the applicant caught up to Tall P at the door to the bar, he slashed Tall P’s hand before Tall P could get inside. Then he followed Tall P into the bar with the machete.

[88] In my view, objectively speaking, the applicant’s conduct was not reasonable in the circumstances.

[89] Eight seconds after the applicant followed Tall P into the bar, the applicant left the bar with the machete and walked south. Twenty-six seconds later, Tall P left the bar holding his injured hand and bent down to pick up an object. He walked northwest and not in the direction of the applicant.

[90] The applicant had no reason to use a machete to “chop” Tall P. The videos demonstrate that everyone was running north away from the applicant who was running north with a machete. He was chasing Tall P who was trying to escape. Tall P did not engage with the applicant. He ran in the opposite direction. After the applicant swung the machete at Tall P, the injury rendered his hand inoperable.

[91] Thus, the applicant’s subjective belief that he went into the bar after chopping Tall P because he thought Tall P might come out with others is not objectively reasonable.

[92] With respect to the applicant’s interaction with Foot, there is no objective belief that force or threat of force was being used against the dreadlocks guy. He was in the parking lot at the time. Further, there is no evidence that the South Park guy was at Lucky’s even on the evidence of the applicant.

[93] At 11.09.08 on the video showing the entrance to Africa House, the applicant is seen coming out the door to Africa House with a machete after “chopping” Tall P and following him into the bar. The applicant walks south. At 11.09.34, Tall P comes out of the door to Africa House holding his hand and bends down to pick up something before walking north to Lucky’s. At that point, the applicant had the opportunity to leave. He did not leave. He did not call for help. Instead, ten seconds after Tall P heads north, the applicant is seen running north with a machete.

[94] The evidence of the applicant was that at Lucky’s, Tall P’s friends, including Foot, approached the dreadlocks guy or the South Park guy and then turned on him and he swung the machete. Mr. Campbell testified that he saw the attack and thought Foot’s head was going to fall off. Photographic evidence shows the staples to the back of Foot’s head.

[95] Accordingly, I find that the applicant’s conduct in relation to Foot was not objectively reasonable in the circumstances.

Conclusion

[96] I have considered the totality of the evidence and the entire factual context. I have assumed that the evidence relied on by the applicant is true. In focusing on whether the evidence is reasonably capable of supporting the inferences required for the defence to succeed, I am cognizant that the threshold is low.

[97] Even assuming that the requirements of reasonable belief and defensive purpose have been met, the responsive acts committed by the applicant that resulted in the injuries to Tall P and to Foot were not objectively reasonable in the circumstances. The evidence, in my opinion, is not reasonably capable of supporting an acquittal.

[98] Accordingly, there is no air of reality to the defence of self-defence. The application is dismissed.

Dunnet J.

Released: March 9, 2018

COURT FILE NO.: CR-17-40000530-0000 DATE: 20180309

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – TOLA DIRK PAUL, Applicant

RULING ON APPLICATION TO PUT THE DEFENCE OF SELF-DEFENCE BEFORE THE JURY

Dunnet J.

Released: March 9, 2018