Court File and Parties
Court File No.: CR-18-30000263-0000 Date: 2019-03-21 Ontario Superior Court of Justice
Between: Her Majesty the Queen – and – Jamal Osborne-Adams, Accused
Counsel: Gavin MacDonald, for the Crown O. Benjamin Vinents, for the Accused
Heard: March 18, 19 and 20, 2019
S.F. Dunphy J.
[1] Jamal Osborne-Adams is charged with assault causing bodily harm contrary to s.267 (b) of the Criminal Code arising from an incident that occurred at a Scarborough Pizza Pizza store at approximately 10:20 p.m. on May 6, 2016.
[2] The Crown proceeded by way of indictment in this case and the accused re-elected trial by judge alone at the outset of trial. The trial was a brief one, evidence consuming approximately two days of court time.
[3] Mr. Osborne-Adams testified in his defence. He asserted that he was assaulted by Mr. Bodiuzaman Chaudhury – the complainant in this proceeding. He testified that at the time he punched Mr. Chaudhury in the nose, Mr. Chaudhury had grabbed him and was choking him. He felt overpowered by a stronger man. Having tried unsuccessfully to cause Mr. Chaudhury to let go of him and similar efforts by his friends to persuade Mr. Chaudhury to do so having failed, Mr. Osborne-Adams claimed that he had no alternative but to “punch [his] way out”. He claims that he did so in self-defence. He did not notice that Mr. Chaudhury had been hurt at the time.
[4] The evidence of Mr. Osborne-Adams, if accepted by me, would be a complete defence to the charges in this case. He claims to have acted in self-defence to fend off an assault by the complainant. The defence also urges me to find that Mr. Osborne-Adams’ evidence supports a finding of implied consent having been given by the complainant to a physical response by the accused to the assault of which he was the victim.
[5] I have not accepted the testimony of Mr. Osborne-Adams regarding the principal issues in this case nor has his testimony raised a reasonable doubt in my mind regarding any of the essential elements the Crown is required to prove. I find that Mr. Osborne-Adams did not enter into a “consent fight” and, in the context of this case, the suggestion of consent is an absurd one to advance. Mr. Chaudhury can in no way be said to have consented, expressly or impliedly to the overwhelming and violent force Mr. Osborne-Adams applied to him. I find that Mr. Osborne Adams intended to cause serious bodily harm when he punched a restrained Mr. Chaudhury square in the face with a full-force punch and that he in fact did so. I further find that the Crown has discharged its burden of proving that self-defence is not applicable in these circumstances either. Mr. Osborne-Adams’ reaction to the comparatively minor contact exerted by Mr. Chaudhury upon him was unreasonable and disproportionate and it arose in a context where Mr. Osborne-Adams was the aggressor.
[6] I find Mr. Osborne-Adams is guilty as charged and my more detailed reasons follow.
Background Facts
[7] The incident giving rise to the charges was captured from start to finish by four quite high-quality video cameras, synchronized with each other to within a fraction of a second. The lighting was good and there were only a few blind spots or places where for one reason or another the video failed to capture at least some portion of the incident. The video evidence was agreed to be authentic and submitted on consent. In addition to that evidence, I heard from three witnesses on behalf of the Crown and two on behalf of the defence.
[8] I shall deal with the evidence of the accused as I relate the facts. By and large I found his evidence to be informed more by hindsight and self-justification bordering on self-deception than by a sincere recollection of the facts. Much of it does not stand up to an examination of the video evidence, all allowances being made for the speed with which things occurred (the entire incident occurred in about 40 seconds).
[9] I have entirely disregarded the testimony of the last Crown witness, Mr. Peter Roderick. I found Mr. Roderick to be wildly unreliable. He plainly wanted no part of testifying and his evidence was utterly at variance with the video evidence in material points. He claimed to have seen nothing and to have returned to his duties making pizza at times video evidence placed him in the thick of things.
[10] The facts are simply told and – given the quite high quality of the video evidence – open to very little serious dispute as to most points. The witnesses have given me their characterizations of the images I have viewed, but there is relatively little that the images did not capture, often from multiple angles.
[11] At approximately 10 p.m. on Friday May 6, 2016 a group of about fifteen youths found themselves in a Pizza Pizza restaurant in Scarborough. The location was about 300 metres from a high school and the youths in question were coming from attending a basketball program at that school.
[12] The precise age of the youths is difficult to estimate with precision. The accused was among them and he was 18 years of age at the time. Although Mr. Osborne-Adams described most of the youths in question as coming from a younger, 14-17 program, the apparent age of the group was very close together. Mr. Osborne-Adams also downplayed the social links between the youths in the group. He described his own group as three or four people and the rest as “kids”. I do not accept this evidence. It is plain that the entire group of youths was acting as a cohesive social group – they knew each other and interacted with each other whether or not each of them was in the habit of hanging out with each other member of the group.
[13] The video evidence begins at 10:08 p.m. At this time, most of the youths can be seen lounging in chairs and occupying or standing in front of all of the tables in the room. Mr. Osborne-Adams was standing and a few seconds later exited the restaurant, followed by three others in short order. Two of the three who left with him are seen to say goodbye to most of the people in the room. A woman who stayed behind initially was acknowledged by him to be part of “his group” although she plainly interacted with all of the youths in the room.
[14] The atmosphere in the room was visibly relaxed. None of the youths appeared to be consuming anything with the exception of one or two visible soft drinks or boxes of juice.
[15] According to Mr. Osborne-Adams, he and a few of his friends had decided to go to another restaurant to get something to eat and were deciding where to go and which bus to take to get there. At all events, the small sub-group of them congregated outside for a short while.
[16] Mr. B. Choudhury – also known as “Ritu” - was working at the restaurant that evening as a cashier and also a delivery driver. His brother, Mr. K. Choudhury – I shall refer to him as “KC” - was the franchise owner. The other employees present at that time were Mr. Peter Rodrick, the pizza cook and his assistant named Rahman. These four were the only staff people in the restaurant.
[17] According to Ritu, someone in the group had had ordered three or four pizzas but he had been obliged to cancel their order because they had no money. I accept that testimony.
[18] Shortly after Mr. Osborne-Adams left the store (but while he and several of his friends were still congregating just outside the door of the store), one of the youths wearing a purple hoodie left the seating area and proceeded to the cash register. For the next minute, he is seen to engage in a discussion with Ritu at the cash register. A pizza in a box that had been brought out to the counter was put back on the oven behind the cash register. The youth in question is seen to continue discussing something with Ritu and at one point turns his pocket inside out as if to demonstrate that it is empty. During this discussion with Ritu, several of the youths from the seating area wandered over to him, some remaining and some wandering back.
[19] Ritu’s evidence – that I accept – is that a single pizza was ordered after the cancelled order and that the youth was looking to collect it. He asked the youth for a receipt to prove he had paid for it and when none was forthcoming, had the pizza put back on top of the oven. When the conversation became heated, Ritu told the youth that he was calling the police and turned his back to head to the back of the store to do so.
[20] A split second after Ritu turned his back, the youth (wearing a purple hoodie) is seen by the video to leap over the counter, grab the pizza and hand it off to one of three friends who had come over at that point. The camera does not capture which friend received the stolen pizza (and it is not material to this case). Two members of the group had earlier come to the counter and headed off-camera to the far edge of the counter. The “purple-hoodie” youth then tried to leap back across the counter to make good his escape. KC was there a split-second too late to stop him. He tried to grab the youth but came away with only his sneaker.
[21] This commotion caught the attention of some of the youths in the seating area. At least one is seen to raise his head and smile.
[22] Within a couple of seconds, Ritu and KC had exited from behind the counter and Ritu can be seen coming around in front of the cash register area and moving rapidly to the off-camera area (the same area where the pizza was seen to have gone). A couple of seconds later he is seen pursuing two youths who are running to the far side of the restaurant where the rest of their friends are seated. At this point, none of the youths appeared to have the purloined pizza in hand.
[23] This commotion clearly caught the attention of the rest of the group. Both those inside the restaurant and those milling about outside can be seen to visibly turn and stare in the same direction. The group outside – led by the accused – dashed into the restaurant immediately.
[24] The accused testified that he decided to come back into the store because he noticed an older person chasing a younger person. He wanted to see what was going on. When he came inside the door, he reached his hand out to ask people to stop and tell him what was going on but nobody would give him an answer. No part of this evidence beyond him having noticed a chase underway corresponds to the video evidence and I reject it.
[25] As the accused crossed the threshold of the restaurant with two of his friends immediately behind him, a group consisting of two of the youths that had been at the counter when the pizza was stolen and Ritu in pursuit passed directly in front of him and collided with a group of four of the youths who were milling around just inside the door.
[26] Immediately upon entering the store, the accused stepped directly into the fray. His first action was an immediately aggressive one, not an inquisitive one. He stepped between one of the fleeing youths and Ritu and aggressively shoved Ritu back. He did so immediately and without delay or hesitation. He took a further step forward and shoved one of the two cooks who were nearby. There was neither warning nor discussion on his part. He did not step in as a referee, but as a player. He continued to shove and push aside the cook while advancing towards Ritu and KC who had by then approached the group. A series of shoves and counter-shoves ensued, with the accused always attempting to advance.
[27] KC stepped in between his brother and the cook and succeeded in separating the group of youths from his two employees. At this point, six youths were directly confronting three store employees. Twelve seconds had elapsed since the accused came back into the restaurant.
[28] The accused at this point continued to advance, this time towards KC who stood between his two employees. The cook was given a stiff shove by the accused and stumbled several steps backwards. KC responded by shoving the accused. The cook returned and the accused and the cook and KC exchanged relatively small shoves.
[29] At this point, everyone had broken off from everyone else. The store employees on one side and the much more numerous youths on the other. KC can be seen to give a clear hand-signal with his arm, pointing towards the open door. This was an unmistakable order to the youths by the store owner for them to leave. KC testified that he was telling them to get out right now. I prefer his evidence to that of the accused who said that he was unable to understand anything said by KC who was “mumbling” (although also describing the situation as one of “pushing and yelling”). The group that had been engaged in the shoving match just ended began immediately to comply. Three visibly turned and started to walk out the door in response to this command. Others had left during the melee, including one of the youths at the scene of the pizza theft who had taken advantage of the confusion to return to the counter side of the store to grab the pizza that had been left behind to this point.
[30] At this point, twenty seconds had elapsed since the accused returned to the restaurant. I am providing these time references because I am well aware that life does not happen in slow motion and it is important to bear in mind the speed with which things occur and the limited time people have to observe and assimilate information.
[31] The accused was not one of those who chose to leave when ordered to do so. I reject his evidence that he did not hear the command. KC was only an arm’s length away. The accused was looking straight at him and appeared to be having words with him. As mentioned, three from among the group with Mr. Osborne-Adams did turn around and leave.
[32] Things might have died down at this point but did not. Mr. Osborne-Adams’ un-resolved anger is the reason why. To this point, Mr. Osborne-Adams had intervened in a situation about which he admits he knew nothing. His intervention was immediately physical and directed solely against the store employees that he saw in front of him. Nothing but stiff-arms and shoves had been exchanged at this point, but Mr. Adams threw the first shove after his intervention and received less than what he got. He gave no sign of stopping to ask questions about “what was going on”. He acted like someone with a score to settle.
[33] Instead of walking out as ordered, Mr. Osborne-Adams walked straight up to KC and stood inches from his face. Another of the youths stood just beside the accused. What was said is not recorded, but it was clearly not words of peace or endearment. Mr. Osborne-Adams suggested, quite implausibly, that he was asking KC what was going on. KC responded to Mr. Osborne-Adams standing in his face by shoving the accused backwards. It was a firm shove to be sure, but no more so than the ones administered seconds earlier by the accused to the cook or Ritu. The other youth beside the accused immediately responded by shoving KC back. While this happened, the accused stepped back and took his back pack and headphones off and threw them on the ground. He then proceeded to step with purpose straight towards KC, shoving his friend and the cook aside to do so. In his own words, he was going to “get in [KC’s] face”.
[34] The accused immediately grappled with KC. At this point the evidence becomes somewhat contradictory and the video evidence largely fails due to the surging crowds. Mr. Osborne-Adams testified that a larger and more powerful KC proceeded to pull him back towards the washroom area and slammed him against the wall and then the other “little kids” came to try to stop him. What little of the video evidence shows the two of them appears to show the contrary – Mr. Osborne-Adams advancing towards KC and continuing to push forward after the two grappled. Mr. Osborne-Adams may have been young, but he was tall, athletic and his actions show someone prepared to act quite aggressively. The “little kids” who came to “help” him were neither little nor kids. Most were full-grown and were at or about the same age as the accused (who had turned 18 three months earlier).
[35] At all events, the renewed conflict caused those that had left to turn around and come back and within seconds eight youths were piling into the small, restricted alcove where the washrooms were found. Whether KC pulled or Mr. Osborne-Adams and the combined weight of eight of his friends pushed cannot be said with certainty and does not matter. Fists rising and falling from the “little kids” were clearly visible on the video as several of the youths attempted to get some punches in on KC. KC testified that he received several punches but was not injured by any of them. I accept his testimony which is amply corroborated by the video evidence.
[36] Ten further seconds have elapsed at this point. Ritu can be seen at the back of the crowd trying to get towards his brother who was by this time surrounded by the youths who were shoving and some of whom were punching him. Ritu pushed his way through the crowd.
[37] With some help from one of the cooks, Ritu then proceeded to push the entire crowd of flailing youths backwards away from his brother and towards the door. Mr. Osborne-Adams said that Ritu came up, grabbed him by his sweater and choked him and then “aggressively” pushed him back. I reject that evidence. While Ritu cannot be seen on camera when contact was first made with the accused in that alcove, the accused described all of Ritu’s contact with him in the same fashion (as “choking”). The subsequent video showing Ritu alone and then with the help of one of the cooks pushing seven of the youths away from his brother and towards the door does not show “choking”. It shows determined pushing by someone assailed on all sides.
[38] When Ritu and Mr. Osborne-Adams are in full view of the camera, the former had his left arm fully extended and in apparent contact with Mr. Osborne-Adams’ shoulder area as he did so. Mr. Osborne-Adams raised his right arm and made a fist as if to strike. At this point, Ritu was partially constrained by three of the other youths in the group all of whom had their hands on his arms or upper body in what can only be described as a melee.
[39] It was suggested by the defence that this first attempted punch was a warning. It was nothing of the sort. Mr. Osborne-Adams was unable to land his intended punch because one of his friends got in the way and Ritu had partially turned to deal with another of the youths. Another youth in the crowd similarly cocked a fist but was unable to land a blow on Ritu at that time for the same reason. Ritu was not punching anyone and was in no position to do so.
[40] Mr. Osborne-Adams cocked his arm again but again the crowd was in the way and it does not appear he was able to land it. A third attempt was successful and Mr. Osborne-Adams hit Ritu square on the nose. Mr. Osborne-Adams can be seen to be locking his eyes on the target during the attempts and during the successful hit.
[41] Throughout these few seconds, Ritu had his left arm fully-extended and appeared to be holding on to Mr. Osborne-Adams hoodie near the shoulder region. Ritu’s right arm appears to be fending off one or the other of the two youths on his right side. All the while, the group continued to be backed up towards the door. Until the punch was landed, Ritu was continually beset by three and sometimes four of the youths, including Mr. Osborne-Adams, who were grabbing at him, jostling him or attempting to punch him.
[42] The total elapsed time between Mr. Osborne-Adams re-entering the restaurant and Ritu receiving the punch in the face was just forty seconds. From the instant that he entered the restaurant until he punched Ritu in the face, Mr. Osborne-Adams was continually in the middle of things and always in the vanguard. His actions were characterized by continual aggression. Half-way through this forty second period of time, Mr. Osborne-Adams chose to continue being aggressive when his friends had all disengaged and most appeared to be heeding a direct order to leave the restaurant. It was his advancing to “get in the face” of KC and the shoving that followed this that re-ignited the fire.
[43] Immediately following the punch thrown by Mr. Osborne-Adams, KC re-joined the fray and attempted to punch Mr. Osborne-Adams. KC testified that he saw the blood erupt from Mr. Osborne-Adam’s punch and he immediately reacted. It is not clear how many of his blows actually landed given the jostling, squirming crowd into which they were sent. The two grappled and KC grabbed hold of Mr. Osborne-Adams by his hoodie and proceeded to hold him for approximately nine minutes until police arrived.
[44] Ritu had in fact received a serious blow and suffered serious harm. The medical reports indicate that he received a deviated septum that will require surgery to heal. At the time of the incident he bled profusely, leaving a wide trail on the floor and in the vestibule. He was clearly dazed and staggered somewhat in the remainder of the video.
[45] During the nine minute interval during which KC held Mr. Osborne-Adams waiting for police to arrive, the rest of the crowd of youths finally left the restaurant after several attempts to rescue Mr. Osborne-Adams. While Mr. Osborne-Adams testified that he did not try to escape and merely sought to persuade KC to relax the grip on his sweater that was choking him, that evidence is flatly contradicted by the video images. While the two were clearly exhausted, Mr. Osborne-Adams frequently struggled and at one point succeeded in getting KC into a headlock while another of his friends piled on. As well, if KC’s grip on his hoodie constricted Mr. Osborne-Adams’ airways slightly, the sweater was soon off and KC’s grip thereafter was on a different area.
[46] When police arrived, they found a mess. There were copious amounts of Ritu’s blood on the floor and in the vestibule area. Mr. Osborne-Adams went peaceably into custody and was thereafter charged with the charge before me today.
Issues to be argued
[47] The principal issues raised by this case are whether the dynamic that resulted in the punch can be characterized as a consent fight and whether self-defence is applicable in this case. I shall review these issues in the context of each of the essential elements that the Crown is required to prove beyond a reasonable doubt.
[48] The issues may thus be stated as follows: a. Did Mr. Osborne-Adams assault Ritu within the meaning of s. 265(1) of the Criminal Code? b. Did Mr. Osborne-Adams foresee or was he reckless as to whether the punch he threw at Ritu objectively risked causing Ritu serious bodily harm? c. Did Ritu in fact suffer serious bodily harm as a consequence of the punch thrown by Mr. Osborne-Adams? and d. Has the Crown proved that self-defence is not applicable in these circumstances?
Discussion
(a) Did Mr. Osborne-Adams assault Ritu within the meaning of s. 265(1) of the Criminal Code?
[49] The three elements of simple assault on the facts of this case are (i) the intentional application of force by the accused; (ii) the lack of consent to that application of force by the complainant; and (iii) the knowledge by the accused of that lack of consent.
[50] There is no question that Mr. Osborne-Adams intended to punch Ritu and did so. He has expressly admitted as much and his punch was captured on a video of high quality.
[51] The defence suggests that reasonable doubt regarding the element of consent exists in this case because the facts support the conclusion – or fail conclusively to exclude the conclusion – that the struggle between Ritu and Mr. Osborne-Adams that resulted in the punch was the equivalent of a “consent fight”.
[52] My careful recitation of the facts ought to suffice to support my conclusion that this suggestion is an absurd one. Mr. Osborne-Adams was the aggressor from the instant he came back into the restaurant until the instant he punched Ritu in the face. He did not stop to seek information from any of the many friends and acquaintances in the room before he decided to intervene – and to do so violently – to prevent Ritu from apprehending the two youths he was chasing. Mr. Osborne-Adams may not have known why the youths were being pursued. There is after all no particular reason he should have known of a stolen pizza that he took no part in stealing and that occurred while he was outside. However he intervened on behalf of those two youths without hesitation and without stopping to inform himself of anything. And he did so by engaging in aggressive shoving that he initiated rather than peaceably sticking out his hand and asking what was going on as he testified to having done.
[53] Mr. Osborne-Adams had every opportunity to disengage and leave the store peaceably when ordered to do so by KC a few seconds later. Nobody was then pursuing the youths whose alleged plight first drew his attention. They were outside of the melee. Others in the melee did disengage and one of the three youths involved in the theft of the pizza even took advantage of the confusion to slip outside with the fateful pizza in hand. Instead the accused chose to escalate the conflict by advancing to within inches of KC’s face in an unmistakably menacing and aggressive manner. After a further shove and counter-shove incident, the accused withdrew and discarded his backpack and headphones to have greater freedom to engage. This was the equivalent of the unmistakable fighting gesture of a hockey player dropping gloves and helmet, but nobody on the “other side” was inviting or accepting an invitation to fight.
[54] Ritu re-entered the fracas when seven or eight of the youths had descended upon his brother trapped in the alcove where the washrooms are situate. He did so with minimal violence – pushing and shoving the youths away from his brother and towards the door. At the time Ritu received a carefully aimed and deliberate punch thrown by the accused in the face, Ritu had at least three youths who had hands on him and were restraining him in some fashion. He had no ability to shield himself from the blow.
[55] I reject entirely Mr. Osborne-Adams self-serving statements that he felt “overwhelmed” by the force of Ritu while Ritu was attempting to push him away and – for some time at least – had a grip on his hoodie at the shoulder. There was no “choking” as claimed and Mr. Osborne-Adams and his friends were aggressively pushing and shoving and generally trying to get around Ritu rather than to disengage and exit the scene.
[56] The suggestion of a “consent fight” lacks any air of reality in this case. Mr. Osborne-Adams was the aggressor in this incident from the time he re-entered the restaurant until the time he threw that punch.
[57] Furthermore, no consent can be given to “very violent forms of force which clearly extend beyond the ordinary norms of conduct”: R. v. Jobidon, [1991] 2 S.C.R. 714 at para. 127.
[58] I find that the Crown has established beyond a reasonable doubt the three essential elements of assault. The accused intentionally applied force to the complainant, the complainant did not consent to that application of force and the accused knew full-well that no such consent existed.
(b) Did Mr. Osborne-Adams foresee or was he reckless as to whether the punch he threw at Ritu objectively risked causing Ritu serious bodily harm?
[59] Mr. Osborne-Adams claimed not to seen anyone get hurt by his punch nor to have seen anyone start bleeding as a result of it. This testimony beggars belief. KC testified that he saw the blood and that this was the trigger for his reaction – a reaction that was swift and energetic from the video evidence. The accused was looking intently straight at his target – Ritu’s face – the entire time he was cocking his fist and landing his punch. Ritu was in no position to fend off the blow having three other youths who were on him and restraining him.
[60] The mental element required to establish assault causing bodily harm requires proof of the mental element for simple assault (as to which see above) and “objective foreseeability that the assault would subject the victim to the risk of bodily harm”: R. v. Karimian-Kakolaki, 2016 ONSC 8013 at para. 14. This element can be satisfied by proof that the accused was reckless whether his acts caused bodily harm to the complainant: R. v. A.E. at para. 23.
[61] Mr. Osborne-Adams evidence as to what he subjectively intended at the time he threw the punch was limited. He testified primarily that he punched Ritu because he felt it was the only way he could make Ritu stop choking him.
[62] I shall address the question of the reasonableness and proportionality of Mr. Osborne-Adam’s reaction to Ritu pushing him away below. It is at all events clear that Mr. Osborne-Adams intended to land a blow to Ritu’s face and, having cocked his fist in the manner he did while staring intently at his target, he can have had no doubt as to the potential for such a forceful blow to inflict serious bodily harm upon its intended target. The target – Ritu’s face – was not accidental. Ritu was outnumbered and restrained in whole or in part by the ministrations of at least three other youths who collectively occupied his attention at that instant. Mr. Osborne-Adams had but one focus – Ritu. And he acted upon that focal point of his attention to inflict serious bodily harm deliberately and with full knowledge of what he was doing.
[63] There can be no reasonable doubt of the matter. The accused intended to inflict serious bodily harm to Ritu or was reckless as to whether a blow that he could reasonably foresee would cause such harm ensued.
(c) Did Ritu in fact suffer serious bodily harm as a consequence of the punch thrown by Mr. Osborne-Adams?
[64] There is no dispute that serious bodily harm in fact ensued as a result of the punch delivered by the accused to Ritu’s nose. Ritu’s face erupted in blood that continued to drip uncontrollably all over the restaurant seating area and vestibule until first aid arrived. The medical records evidencing a deviated septum were admitted on consent.
(d) Has the Crown proved that self-defence is not applicable in these circumstances?
[65] The defence argued strenuously that self-defence is applicable in the circumstances of this case. In my view, there can be no reasonable doubt that self-defence does not relieve the accused from responsibility for his actions.
[66] Section 34(1) of the Criminal Code prescribes three conditions to relieve an accused from guilt for an offence. In the context of this case, these are (a) that the accused believed on reasonable grounds that force was being used against him; (b) the act that constituted the offence was committed for the purpose of defending or protecting himself from that use of force; and (c) the act committed was reasonable in the circumstances.
[67] There is no dispute that the first condition is satisfied. Ritu had his hand upon Mr. Osborne-Adams’ shoulder.
[68] The second condition poses a more significant issue. The Crown would have me read the words “for the purpose of defending or protecting themselves” in s. 34(1) (b) of the Criminal Code to exclude actions taken by an aggressor to cause the victim of such aggression to desist in any physical contact.
[69] On a literal reading of s. 34(1) (b) of the Criminal Code, an aggressor who is attempting to continue a violent assault upon someone but is restrained from doing so by a Good Samaritan intervening to hold him back would have the right to use all necessary force in order to cause the restraint to cease so as to free himself to finish off his intended victim. That would be an absurd reading, albeit one that applies the literal meaning of the words employed.
[70] Ritu’s position in this case is quite analogous to the Good Samarian example posed by me. He clearly intervened to protect his brother who was being violently assailed by eight youths all of whom were of a size and build to be in a position to harm him seriously. He did so with a minimum of force – pushing the apparent ring-leader (the accused) backwards away from his brother and towards the door. The contact with the accused - intermittent grabbing of his hoodie in the shoulder region while pushing – was minor and entirely proportional to the danger faced by his brother.
[71] In these circumstances, I find no need to decide whether s. 34(1) (b) is applicable on these facts because I have no doubt that s. 34(1) (c) is at all events inapplicable. The force applied by the accused – even if intended only to cause Ritu to stop what he was doing – was wildly disproportional and entirely unreasonable.
[72] Among the factors that s. 34(2) directs me to examine in considering the reasonableness of the conduct of the accused is (a) the nature of the force; (b) other means available to respond to it, (c) the person’s role in the incident; and (g) the proportionality of the person’s response.
[73] The nature of the force being applied to him was comparatively minor and well within the range of the pushing and shoving that the accused himself initiated from his first instant upon the scene. I find that the accused’s assertion that he was being “choked” to be a gross exaggeration. He never had more than one hand on him from Ritu and never on his neck. His clothing may have been grabbed intermittently in a way that constricted him in a minor way, but not more.
[74] The accused had any number of alternatives to physical violence bearing a serious risk of bodily harm open to him. These ought reasonably to have come to mind not only in the sober and measured light of hindsight but also objectively in the heat of the moment. Mr. Osborne-Adams might have simply stopped struggling for a second and made any obvious sign of intending to retreat out of the store such as attempting to turn around or raising his hands. It was his advance towards KC ten seconds earlier that had ignited this phase of the melee and caused the others who were leaving to pour back into the store and follow him. He had only to lead by example again and pause in the struggle long enough to retreat and – as he claimed was his sole objective all along- to find out calmly what was going on.
[75] The role of the accused in this incident was as a leader and aggressor throughout from the time he re-entered the restaurant 40 seconds earlier. He cannot invoke self-defence as a means of violently shaking off restraints to resume his aggressive behaviour.
[76] Finally the action of the accused in punching his victim squarely in the face, particularly a victim who was effectively restrained by simultaneously dealing with three others one of whom was also trying to punch him, is wildly disproportional to the force being applied to the accused.
[77] I am not moved by the argument that the proportionality of the response can be measured by the fact that Ritu did not immediately release his grip upon the accused’s sweater (even as his head snapped back).
[78] I am satisfied beyond any reasonable doubt that self-defence within the meaning of s. 34 of the Criminal Code does not apply in the circumstances of this case.
Disposition
[79] Accordingly, I find Mr. Osborne-Adams to be guilty of assault causing bodily harm as charged in the indictment. A date for sentencing shall now be set.