R. v. Oppenheimer, 2019 ONSC 3281

COURT FILE NO.: CR-1850000295-0000

DATE: 20190529

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

SHAWN OPPENHEIMER

Valerie Culp, for the Crown

John Kaldas, for the Defendant

HEARD: March 4-8 & 11, 2019

REASONS FOR JUDGMENT

Garton J.

introduction

[1] The defendant, Shawn Oppenheimer, is charged with wounding the complainant, Abdirizaq Yabarow, contrary to s. 268(2) of the Criminal Code, R.S.C., 1985, c. C-46.

OVERVIEW

[2] The incident giving rise to the charge took place at the Toronto South Detention Centre (“TSDC”), where both Mr. Oppenheimer and Mr. Yabarow were inmates. They were housed in Unit C4C (“C4C”), which is one of four protective custody units within the jail. The altercation occurred shortly before 1:00 p.m. on October 23, 2017, and was captured by security cameras.

[3] Mr. Oppenheimer had been at the TSDC for two months, and had spent a month and a half in C4C prior to the incident. Mr. Oppenheimer has a lengthy criminal record and was familiar with the “inmate’s code.”

[4] Mr. Yabarow had only been in C4C for about two-and-a-half weeks, or shortly after his October 5, 2017 arrest. Prior to his arrest, he had never been in custody, and therefore was not familiar with jailhouse culture or the inmate’s code.

[5] Mr. Yabarow never stated, nor was he asked during his testimony, about the specific charge that resulted in his incarceration. However, he testified that whenever a new inmate arrived in C4C, other inmates quickly learned about the charges that inmate was facing, either by watching television, or asking a friend or relative outside of the TSDC to search the Internet. Mr. Oppenheimer testified to a similar effect.

[6] Mr. Yabarow assumed that everyone in C4C, including Mr. Oppenheimer, knew the offence with which he was charged, although no one raised the subject with him.

[7] Mr. Oppenheimer testified that he believed that Mr. Yabarow was charged with second degree murder. Crown counsel did not contest the validity of that belief, and the parties made their final submissions on the basis that Mr. Yabarow was, in fact, charged with murder.

[8] Within a day or two of Mr. Yabarow’s arrival at C4C, he and Mr. Oppenheimer had a confrontation that was referred to during the trial as the “breakfast incident.” Mr. Oppenheimer apparently had an agreement with another inmate, Mr. Murray (“Murray”), who routinely let Mr. Oppenheimer take his breakfast tray as Murray ate most of his food from the canteen. When Mr. Yabarow saw Mr. Oppenheimer take Murray’s tray – Murray was not present at the table at the time – he told Mr. Oppenheimer “This breakfast is someone else’s, not yours.” Mr. Oppenheimer took great offence at this remark. The incident is described in more detail in my review of the evidence. However, it ended when Mr. Oppenheimer walked up to where Mr. Yabarow was seated at the table and told him that he had a private agreement with someone regarding the tray, that it was none of Mr. Yabarow’s business, and to stay out of his business.

[9] Mr. Yabarow described Mr. Oppenheimer as coming “very very close” to him when he said these words. Mr. Oppenheimer was “right on top of [his] body” when he also told Mr. Yabarow, “Fuck you.” Mr. Yabarow, in response, said “fuck” back to Mr. Oppenheimer and pushed him away. Mr. Yabarow testified that he did not know the meaning of the word “fuck” at the time, but thought that it was probably something “bad” or insulting. He explained that he had arrived in Canada from Norway in May 2016 and spoke very little English. His native language is Somali.

[10] Mr. Oppenheimer denied saying the word “fuck” to Mr. Yabarow.

[11] Mr. Yabarow testified that since the breakfast incident, and pursuant to the inmate’s code, he now knows better than to intervene in other inmates’ matters. If two inmates are in a dispute or fighting, the inmate’s code demands that other inmates just watch or look at each other rather than interfering in any way.

[12] Mr. Yabarow testified that later on the same day as the breakfast incident, Mr. Oppenheimer offered him a “fist bump,” which Mr. Yabarow reciprocated. After bumping fists, Mr. Yabarow believed that there was peace between them.

[13] Mr. Yabarow testified that on a day to day basis, he and Mr. Oppenheimer would see or pass by each other. However, they did not have any further conversation after the breakfast incident until October 23, 2017. He testified that he did not know enough English to have a lengthy conversation with Mr. Oppenheimer or anyone else.

[14] Mr. Oppenheimer agreed in his testimony that he and Mr. Yabarow had no verbal communication following the breakfast incident until October 23, 2017. He testified, however, that during that interval, Mr. Yabarow, on two occasions, made a “switchblade” hand gesture, which Mr. Oppenheimer took to be a threat. Mr. Oppenheimer alleged that Mr. Yabarow also acted disrespectfully toward him on one occasion when Mr. Oppenheimer was playing bridge with other inmates. Mr. Oppenheimer also alleged that prior to October 23, two other inmates warned him to “watch his back” because they had heard a rumour that Mr. Yabarow had “not let the breakfast incident go” and was going to stab Mr. Oppenheimer.

[15] Mr. Oppenheimer testified that on October 23, 2017 he approached Mr. Yabarow, who was seated in the soft-seating area of the dayroom, for the purpose of discussing the rumours with him. Mr. Oppenheimer was standing behind the seating area and tapped Mr. Yabarow on the shoulder in order to get his attention. He testified that he wanted Mr. Yabarow’s assurance that the rumours were not true. According to Mr. Oppenheimer, Mr. Yabarow did, in fact, tell him that the rumours were false, and that whoever had told him about the rumours was lying. Mr. Oppenheimer, however, did not believe Mr. Yabarow. He testified that during their conversation, Mr. Yabarow pointed his fingers at his face. He also made a hand gesture that imitated the shape of a gun, and told Mr. Oppenheimer, “You’ll have your time” or “Your time will come.” Mr. Oppenheimer took this to mean that Mr. Yabarow intended to “shank” or knife him at some future date when his guard was down.

[16] Mr. Yabarow denied making a “gun” gesture, and testified that he did not know enough English to say the words attributed to him by Mr. Oppenheimer. He testified that he did not understand what Mr. Oppenheimer was trying to tell him.

[17] Footage from the security cameras shows that after a very brief conversation with Mr. Yabarow, who was seated and in a very relaxed pose, Mr. Oppenheimer leaned over the sofa or seating area, punched him in the face, and pushed him onto the floor. Mr. Oppenheimer then came around the sofa, walked over to Mr. Yabarow, who was crouched on the floor with his hands to his face, and kicked him in the head. As Mr. Yabarow tried to run away, Mr. Oppenheimer pushed him into a wall with such force that it broke Mr. Yabarow’s left arm.

[18] Mr. Yabarow sustained injuries as a result of this attack, including a split lower lip that required eleven sutures to close and took two months to heal. His lip, as seen in the photograph marked as Exhibit 2(b), was severely swollen. Mr. Yabarow’s fractured left arm was in a cast for five to six months. He also sustained cuts and scratches to his right elbow.

[19] Mr. Oppenheimer’s right middle knuckle was split open and bleeding. He presumably incurred this injury when he hit Mr. Yabarow in the face.

[20] Mr. Oppenheimer testified that he acted in self-defence. He testified that his use of force against Mr. Yabarow was necessary in order to respond to the threat uttered by Mr. Yabarow that “his time would come,” and the threatening “gun” gesture. These threats, in addition to Mr. Yabarow’s response to the breakfast incident, the two earlier switchblade hand gestures allegedly made by Mr. Yabarow, the “bridge game” incident, as well as the rumours that Mr. Oppenheimer says he heard via two other inmates, caused him to fear for his life. He believed that had he not used force against Mr. Yabarow, he would, at some future date, be knifed by either Mr. Yabarow or another inmate.

THE ISSUE

[21] The issue in this case is whether the Crown has established beyond a reasonable doubt that Mr. Oppenheimer was not acting in self-defence when he attacked Mr. Yabarow. In assessing self-defence, the prison setting and the “inmate’s code” are crucial contextual factors: R. v. Primmer, 2018 ONCA 306, 361 C.C.C. (3d) 59.

[22] The principles in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, apply.

WITNESSES

[23] In addition to Mr. Yabarow, the Crown called as witnesses three Correctional Officers who were on duty in C4C during the incident on October 23, 2017. These included Connor Slogan (“Slogan”), Trey Grant (“Grant”), and Kevin Tran (“Tran”).

[24] The Floor Sergeant, Michael McCourt (“McCourt”), testified with respect to an utterance made by Mr. Oppenheimer shortly after the attack on Mr. Yabarow. McCourt was called to C4C after the incident. He did not know the nature of the incident at that time. Prior to entering the unit, he encountered Mr. Oppenheimer, who was standing in a hallway with Slogan and Tran. McCourt first asked the correctional officers what had happened. One of them replied, “An altercation.” McCourt then asked Mr. Oppenheimer, “What happened?” Mr. Oppenheimer replied, “This Somalian guy was trying to run the unit so I hit him.”

[25] Mr. Oppenheimer did not deny making this statement. He testified, however, that it was untrue. He explained that he did not tell the correctional staff that Mr. Yabarow had threatened him because he did not want to be labelled as a “rat.”

EVIDENCE

Testimony of Abdirizaq Yabarow

[26] Mr. Yabarow, who was 36 years old at the time of this incident, testified through a Somalian interpreter. He stated that his English is currently far better than it was in October 2017. He has taken some English classes while in custody and, with the passage of time, he has had more opportunities to converse with people in English.

[27] It is apparent from the security footage, as well as the photographs taken of Mr. Yabarow at the hospital, that he was much thinner in October 2017. He described his physique at that time as tall and slim, with an estimated weight of 70 kilograms or 154 pounds. His current weight is 105 kilograms or 231 pounds,

[28] Mr. Yabarow was a reluctant witness. He clearly did not want to be in court or to testify against Mr. Oppenheimer. In terms of the injuries that Mr. Oppenheimer inflicted on him, he stated that he was “not after [Mr. Oppenheimer],” that he forgave him, and that he did not want him to be charged.

[29] Mr. Yabarow testified that the only time that he had spoken to Mr. Oppenheimer prior to October 23, 2017 was two weeks earlier, during the breakfast incident, when he told Mr. Oppenheimer that “this breakfast is someone else’s, not yours.” Mr. Yabarow took responsibility for that incident: “It was my fault. I didn’t know the system of the jail and that’s where the problem started.” When asked what he meant by “the system of the jail,” Mr. Yabarow explained that he had only been in custody for a few days at that time. He did not know that “you don’t tell someone that this is not your breakfast, you don’t say these things. You don’t intervene in anything in the jail.”

[30] Mr. Yabarow could not recall what Mr. Oppenheimer said to him in response to his comment that the breakfast tray belonged to someone else. He only recalled that they argued. When his memory was refreshed by reference to his testimony at the preliminary hearing in May 2018, he stated that he answered the questions posed to him “correctly and truthfully” at that time, but could not repeat those answers because “I don’t remember.” At one point, he stated, “I have my own problems around my family and kids. I take medication. I have my own issues, so I don’t remember anything.”

[31] As stated earlier, Mr. Yabarow recalled that during the breakfast incident, Mr. Oppenheimer came “very very close” to him or was “right on top of [his] body” (indicating his right shoulder), and that he told Mr. Yabarow, “Fuck you.” Mr. Yabarow, in response, said “fuck” back to Mr. Oppenheimer, told him to move, and pushed him away. He agreed that at the preliminary hearing, when asked if he told Mr. Oppenheimer to “fuck off,” or words to that effect, he stated, “I don’t know English. I don’t know English swear words.” At trial, he explained that he did not know what the word “fuck” meant at the time, but assumed it was a bad or insulting word.

[32] Mr. Yabarow denied that he made any threatening hand gestures toward Mr. Oppenheimer following the breakfast incident, or that he threatened him, either directly or indirectly through other inmates, that he would cause him harm or stab him. He denied telling a fellow Somalian inmate that “Shawn better watch out” because he was “going to get him.” He testified that he never threatened Mr. Oppenheimer nor treated him in a disrespectful manner.

October 23, 2017

[33] Mr. Yabarow denied that his conversation with Mr. Oppenheimer on October 23 was about whether or not he and Mr. Oppenheimer had fully made peace following the breakfast incident. As far as Mr. Yabarow was concerned, they had made their peace: “After the very first incident, we took peace or we made peace. That’s something that was in existence.”

[34] Mr. Yabarow testified that the problem on October 23 was the fact that he did not understand what Mr. Oppenheimer was saying to him. Since Mr. Oppenheimer was speaking quietly or in a normal tone of voice, Mr. Yabarow had no warning that he was about to start hitting him. Had he known he was going to be attacked, he would not have remained seated but would have stood up and defended himself or taken preventive action.

[35] Mr. Yabarow stated that it was possible that Mr. Oppenheimer misunderstood what he was saying because of Mr. Yabarow’s difficulty with the English language at that time. He described himself as speaking in broken English. However, he denied that he knew enough English or had the level of knowledge of the English language to say “Your time will come.”

The security camera footage: Camera C4C Cells [“Cells Camera”], Camera C4C Dayroom 1 (“Dayroom 1 Camera”) and Camera C4C Dayroom 2 [“Dayroom 2 Camera”]

[36] During his testimony, Mr. Yabarow was shown footage from the security cameras that captured the interaction between himself and Mr. Oppenheimer on October 23, 2017. There were three such cameras. The two “Dayroom Cameras” captured the incident from some distance. The footage from the “Cells Camera” provides a closer view of the event, but both Mr. Oppenheimer and Mr. Yabarow moved out of its range toward the latter part of the altercation.

[37] The footage from the Cells Camera commences at 12:56 p.m. Mr. Yabarow was seated in the last row of chairs in the soft-seating area of the dayroom. The chairs were pushed together so that they formed one long sofa. Mr. Yabarow appears to be relaxed. His legs are pulled up in front of him, with his knees bent and his feet on the edge of his chair. His position is such that he would have been facing the television on the opposite wall.

[38] At 12:56:46 p.m., Mr. Oppenheimer approached Mr. Yabarow from behind the sofa. He tapped him lightly on his left shoulder, first with his right and then his left hand. Mr. Yabarow turned his head slightly to the left and looked up, presumably to see who was trying to get his attention. Mr. Oppenheimer then moved so that he was standing directly behind Mr. Yabarow. He touched Mr. Yabarow again, this time on his right shoulder with his left hand. Mr. Oppenheimer said something to Mr. Yabarow. Mr. Yabarow, in response, turned his head to the right and looked up at Mr. Oppenheimer. Mr. Yabarow maintained his relaxed pose, with his knees pulled up toward him on the sofa. Mr. Oppenheimer then stepped back from the sofa, and made a couple of motions with his left hand, indicating to Mr. Yabarow to “come here.”

[39] At that point, Mr. Yabarow put his feet on the floor, sat up a bit straighter, and turned his upper body to the right so that he was looking up and toward Mr. Oppenheimer. Mr. Yabarow rested his right elbow on the back of the sofa as he sat listening to Mr. Oppenheimer.

[40] Mr. Oppenheimer moved closer and leaned over the sofa. He was bent at the waist, with both elbows resting on the back of the sofa as he spoke to Mr. Yabarow. At one point, Mr. Yabarow momentarily leaned his head toward Mr. Oppenheimer as though he was trying to hear him better. Mr. Yabarow testified that he put his ear closer to Mr. Oppenheimer because he did not understand what Mr. Oppenheimer was saying. Mr. Yabarow then sat up somewhat straighter, but continued to rest his right arm, from the elbow to his hand, on the back of his chair.

[41] In cross-examination, defence counsel questioned Mr. Yabarow in some detail with respect to four particular hand movements that he made during his interaction with Mr. Oppenheimer. It was suggested to Mr. Yabarow that the second hand gesture – referred to as “Gesture #2” during these proceedings – consisted of a pointing and flicking of his fingers at Mr. Oppenheimer in a disrespectful manner. Mr. Yabarow denied this suggestion.

[42] Mr. Yabarow also denied the suggestion that during the fourth hand movement, when he reached up and lightly tapped Mr. Oppenheimer’s left shoulder with the back of his hand, he threatened Mr. Oppenheimer by telling him, “Your time will come,” or “You’ll have your time,” meaning that he would kill him. As earlier noted, Mr. Yabarow testified that he did not have a sufficient command of the English language to utter those words.

[43] Screenshots of the four hand gestures appear on the CD marked as Exhibit 5. The gestures and interaction between Mr. Oppenheimer and Mr. Yabarow are set out below.

Gesture #1

[44] At approximately 12:57:11 p.m., Mr. Yabarow turned his right hand palm up while his right elbow remained resting on the back of the sofa. Mr. Yabarow testified that he was indicating to Mr. Oppenheimer through this gesture that he did not understand what he was telling him. He was asking Mr. Oppenheimer, “What are you saying?” and was using his hands as a way of explaining to him that he did not “know the language.”

[45] Mr. Oppenheimer proceeded to lean further over the back of the sofa. At 12:57:19 p.m., Mr. Yabarow again momentarily leaned his head forward while looking down. Mr. Yabarow testified that he put his ear closer to Mr. Oppenheimer because he still could not hear him or understand what he was saying.

[46] Mr. Oppenheimer then straightened up as he continued talking to Mr. Yabarow. Mr. Yabarow remained seated, but was looking up and to his right, in the direction of Mr. Oppenheimer. Mr. Yabarow continued to rest his right arm or elbow on the back of the sofa.

[47] At 12:57:27 p.m., Mr. Oppenheimer again leaned over the back of the sofa and continued talking to Mr. Yabarow.

Gesture #2

[48] Between 12:57:31.860 p.m. and 12:57:32.859 p.m., Mr. Yabarow sat up somewhat straighter and, in removing his elbow from the back of the sofa, raised his right arm slightly. His arm was bent at the elbow. He then brought his arm down and placed his hand, palm down, on his thigh. The middle portion of this gesture is captured in the second photograph shown in Exhibit 5.

[49] Mr. Yabarow testified that he was indicating to Mr. Oppenheimer through Gesture #2 that he was confused about what he was telling him. He disagreed with defence counsel’s suggestion that he pointed and flicked his fingers at Mr. Oppenheimer’s face. Mr. Yabarow testified:

The way it happened is that I opened my fingers, like he was standing behind me. I did not understand. I say, I opened my fingers up, my fingers of my hand like this.

[50] When demonstrating this gesture in the witness box, Mr. Yabarow had his right arm bent at the elbow, palm up and facing forward, with his wrist then pronating inward so that his hand was palm down. He then closed his fingers.

[51] Mr. Yabarow testified that had he made a threatening or disrespectful motion towards Mr. Oppenheimer, such as flicking or pointing his fingers at him, he would have stood up and paid more attention. He explained: “If you insult somebody or do something really insulting then you will not keep – you will not remain seated.”

[52] Mr. Yabarow testified that he was smiling at the time because he did not want to “look badly” or angry while Mr. Oppenheimer was talking to him as that might cause Mr. Oppenheimer to act aggressively. Mr. Yabarow testified, “So, you have to – when somebody talk to you, you have to approach him in a friendly way.” He explained that if an inmate says something “bad” in a prison setting, where everybody is stressed out, they could cause a fight.

Gesture #3

[53] Mr. Yabarow resumed the position he was initially in when Mr. Oppenheimer first approached him – that is, he was leaning back slightly in his chair, with his legs pulled up, knees bent, and his feet on the edge of the chair. While in the course of taking this position, Mr. Yabarow’s right hand was momentarily on his right thigh.

[54] At 12:57:33, as Mr. Yabarow raised his right knee in the course of placing his foot on the chair, his hand remained on his right leg. However, he momentarily removed his hand from his leg and raised his arm slightly. He then placed his right hand around his right ankle. His left hand was holding his left ankle. This movement is depicted in the third photograph shown in Exhibit 5. Mr. Yabarow testified that he was sitting in a relaxed fashion because he did not expect any trouble or a problem to arise.

Gesture #4

[55] Mr. Oppenheimer continued to lean over the sofa while standing to the right of Mr. Yabarow.

[56] At 12:57:35 p.m., while still seated, Mr. Yabarow reached up and lightly touched or tapped Mr. Oppenheimer’s upper left arm or shoulder with the back of his hand. This movement is Gesture #4 in Exhibit 5. After this quick touching, Mr. Yabarow placed both of his hands together between his shins. His legs were together and still bent at the knees. His feet were on the edge of the sofa. He was looking up at Mr. Oppenheimer. Mr. Yabarow testified that he was telling Mr. Oppenheimer, “I don’t understand you” or “I don’t understand your problem,” and was using his hand as a way of explaining this to him. He testified, “I did not touch him with bad intention. If that was what I wanted, I would have … defended myself against him.” Mr. Oppenheimer, during his testimony, alleged that Gesture #4 constituted a “gun” gesture.

[57] At 12:57:37 p.m., Mr. Oppenheimer suddenly punched Mr. Yabarow in the mouth, knocking his head backwards. Mr. Yabarow fell onto his left side and then onto his back. As Mr. Yabarow’s legs were flailing in the air, Mr. Oppenheimer leaned over the sofa and, using both hands, pushed him onto the floor. As Mr. Yabarow struggled to his feet and was holding his hand to his mouth, Mr. Oppenheimer walked around the sofa toward him.

[58] The Dayroom camera footage shows that Mr. Yabarow, whose back was turned to Mr. Oppenheimer, started walking away from him. Mr. Yabarow was stooped forward and holding his hand to his mouth as he made his way to the end of the last row of chairs in the soft-seating area. When he reached the end, he crouched down on the floor. He was holding both hands to his mouth. Blood can be seen dripping from his face and onto the floor. He was in this position when Mr. Oppenheimer reached him and kicked him in the head. Mr. Yabarow tried to run away but only managed to take a couple of steps before Mr. Oppenheimer caught up to him and pushed him into a wall, breaking Mr. Yabarow’s left arm.

[59] At this point, two Correctional Officers reached the two men. They ordered Mr. Oppenheimer to get down on the floor. Mr. Oppenheimer immediately complied and offered no resistance. He was handcuffed and removed from the dayroom. Mr. Yabarow walked a short distance from where Mr. Oppenheimer and the Correctional Officers were located. He was crouched on the floor for a few seconds, with his hand over his mouth. He then made his way to the washroom.

[60] Mr. Yabarow denied that he said anything, either in English or Somali, after he was punched in the mouth, as he was “busy with my injuries and the blood.” He testified that there was another Somalian inmate whom he considered to be a friend and who was, from time to time, housed in C4C. However, Mr. Yabarow testified that he did not see that inmate in the October 23rd security camera footage.

[61] Mr. Yabarow denied ever threatening Mr. Oppenheimer or treating him with disrespect. He stated that if he had threatened Mr. Oppenheimer or said or done something that was disrespectful toward Mr. Oppenheimer during their interaction on October 23, he would have stood up.

[62] Mr. Yabarow denied that Mr. Oppenheimer, during their conversation, asked him, “Are we okay?” He denied that Mr. Oppenheimer told him that he did not want any trouble and did not want to get shanked.

Testimony of Correctional Officer Connor Slogan

[63] Connor Slogan testified that the Dayroom Camera footage is an accurate representation of the altercation between Mr. Oppenheimer and Mr. Yabarow. Slogan did not hear any threats or yelling prior to the incident. He noted that many of the inmates in the dayroom stood up and dispersed from the area when Mr. Oppenheimer punched Mr. Yabarow in the face.

[64] Slogan and Correctional Officer Trey Grant ran toward Mr Oppenheimer, who complied with the order to get down on the floor. Mr. Oppenheimer was then handcuffed with his hands behind his back. At that point, Correctional Officer Kevin Tran appeared on the scene. Tran and Slogan brought Mr. Oppenheimer to his feet and escorted him out of the dayroom and into a hallway. They were in the hallway when the Floor Sergeant, Michael McCourt, attended and asked them, as well as Mr. Oppenheimer, what had happened. It was at this time that Mr. Oppenheimer made the utterance: “This Somalian guy was trying to run the unit so I hit him.”

[65] Slogan noted that Mr. Oppenheimer’s right middle knuckle was split open and bleeding. Tran gave Mr. Oppenheimer a paper towel to apply to his hand.

[66] Slogan testified that there are no cameras in the shower area. Hence, inmates will use that area to commit acts of premeditated violence, as well as to make, hide or consume illegal substances.

[67] Slogan agreed with defence counsel’s suggestion that the jail environment is potentially a violent and dangerous place. Grievances and grudges can arise among inmates. There may be bullying of one inmate by another. Inmates who are known to be rats may be targeted by other inmates. As a result, an inmate may be reluctant to report an assault or a threat. An inmate’s complaint of an assault or a threat would be documented, as correctional officers are required as part of their duties to complete a report when such a complaint is made.

Testimony of Trey Grant

[68] Trey Grant testified that his attention was drawn to the area where Mr. Oppenheimer and Mr. Yabarow were situated after he heard “jostling” in the dayroom. He looked up and saw Mr. Oppenheimer strike Mr. Yabarow. Grant shouted, “Stop fighting.” Mr. Oppenheimer did not comply with that order. Grant again shouted out, “Stop fighting.” When he reached the area of the altercation, he stood between Mr. Oppenheimer and Mr. Yabarow, and ordered Mr. Oppenheimer to the floor.

[69] Grant observed that Mr. Yabarow was bleeding from a facial wound and that “blood had been tracked” throughout the dayroom. He told Mr. Yabarow, who was in the washroom, to apply pressure to the wound in order to control the bleeding.

[70] Grant was unable to attest to a hierarchy among inmates in terms of the offences with which they are charged. He observed, however, that inmates who have been in a unit for a longer period of time are generally more comfortable with the staff and other inmates than those inmates who are newer to the unit.

Testimony of Shawn Oppenheimer

[71] Mr. Oppenheimer was 26 years old at the time of this incident. He was born in Edmonton, Alberta, and grew up in Crescent Valley, British Columbia. He described his ancestry as Native American, and belonging to the Okanagan Band. He believes that both his mother and maternal grandmother were involved in the residential school system.

[72] Although Mr. Oppenheimer was sometimes in the care of his mother, he was, for the most part, raised in foster care, which he stated was “hard to talk about” because it involved a “lot of abuse.” Mr. Oppenheimer experimented with drugs as a teenager, and eventually developed a substance abuse problem. This, in turn, led to his involvement in the criminal justice system and a lengthy criminal record, commencing when he was a youth. [See Exhibit 6.]

[73] As a result of the time he has spent in custody, Mr. Oppenheimer has become familiar with the inmate’s code of conduct.

[74] Mr. Oppenheimer testified that there is a hierarchy among inmates, depending on the offence that they have been charged with. Inmates charged with murder are generally given a little more respect and distance because other inmates do not want to get involved with them. He testified that he tried to avoid altercations with anyone charged with murder, given that there are “all sorts of shanks" or knives within the jail. He kept his distance from such inmates out of fear.

[75] Mr. Oppenheimer testified that at the time of the “breakfast incident,” he believed that Mr. Yabarow was charged with second degree murder. He testified that inmates in C4C regularly asked friends or acquaintances outside the prison to Google the name of a new inmate to find out why that individual was in custody, and that “word of mouth” travelled fast. In terms of the offence with which Mr. Yabarow was charged, Mr. Oppenheimer testified that he had overheard a comment made by another inmate that Mr. Yabarow had “snitched himself out on a body,” meaning that Mr. Yabarow had himself indicated that he was charged with murder. Mr. Oppenheimer testified that a few days prior to October 23, another inmate, whose name he could not recall, had told him that Mr. Yabarow’s murder charge involved the use of a broken bottle.

[76] Mr. Oppenheimer agreed that Mr. Yabarow was not the only inmate in protective custody who was charged with murder. He agreed that this was not the first time that he had been housed with someone facing a murder charge or other very serious charges.

[77] Mr. Oppenheimer also agreed that, based on his own evidence, it was likely that everyone in C4C knew the offence with which he himself was charged. He stated that he may actually have disclosed that charge to other inmates. He denied, however, that based on that charge, other inmates respected him and kept their distance from him. He also denied that as a result of having been housed in C4C for some time, he carried a certain amount of “weight” or was seen as a leader, and was known for being “tough.”

[78] Mr. Oppenheimer, who is 5 feet 9 inches tall, currently weighs 200 pounds. He testified, however, that in October 2017 he weighed 150 pounds, or about the same weight as Mr. Yabarow. However, Mr. Oppenheimer appears in the video footage to have a somewhat more muscular build than Mr. Yabarow, who is taller than Mr. Oppenheimer and who was quite thin at the time.

The Breakfast Incident

[79] Mr. Oppenheimer maintained that although Mr. Yabarow was not fluent in English, he knew enough of the language to make himself understood. He acknowledged, however, that at the time of the breakfast incident, which happened shortly after Mr. Yabarow’s arrival in C4C, Mr. Oppenheimer had not had any direct communication with him and therefore had no idea how much English he understood.

[80] Mr Oppenheimer disagreed with the suggestion that Mr. Yabarow kept mostly to himself when he first arrived at C4C. He testified that Mr. Yabarow interacted with the inmates who sat at his table, including Murray, as well as a Somalian inmate, with whom he conversed in his native language.

[81] In his examination-in-chief, Mr. Oppenheimer testified that when he picked up Murray’s breakfast tray from the table, Mr. Yabarow asked him, “What the fuck are you doing?” Mr. Oppenheimer looked at Mr. Yabarow, but did not say anything because “it was none of Mr. Yabarow’s business.” He testified that he simply walked away to another part of the room to get hot water for his morning coffee.

[82] Mr. Oppenheimer testified that as he walked away, he looked over his shoulder and back at Mr. Yabarow, whom he believed was “following me with his eyes.” As he looked back, Mr. Yabarow gave him “the middle finger,” meaning “fuck you.” Mr. Oppenheimer perceived this to be a threat. He testified that he was baffled, as he did not know Mr. Yabarow. He returned to Mr. Yabarow’s table, walked over to him, and told him, “This is a private agreement that I have with somebody at your table. This is none of your business. Stay out of my business.” Mr. Yabarow responded, “Fuck you,” and pushed Mr. Oppenheimer away.

[83] Mr. Oppenheimer testified that he returned to his own table, put down the two trays, walked over to Murray, who was in the soft-seating area, and told him what was going on. Murray laughed it off and told him not to worry, stating that Mr. Yabarow was “at least trying to ride for me,” meaning that he was trying to defend Murray’s honour. Mr. Oppenheimer agreed in cross-examination that there is an unspoken rule that this is what inmates do for each other.

[84] Mr. Oppenheimer told Murray to let Mr. Yabarow know about their ongoing agreement with respect to his tray so that “we don’t have to continue a problem like this.”

[85] In cross-examination, Mr. Oppenheimer testified that as he picked up Murray’s tray, Mr. Yabarow said something to the effect that the tray did not belong to him and to put it down. Mr. Oppenheimer testified that he felt threatened by Mr. Yabarow, although he agreed that Mr. Yabarow uttered no verbal threats and made no threatening gestures toward him. He agreed that Mr. Yabarow remained seated at the table with his own tray. Mr. Oppenheimer was standing on the other side of the table, or across from Mr. Yabarow.

[86] Mr. Oppenheimer then walked around the table and behind Mr. Yabarow as he made his way to where the hot water was located. He testified that Mr. Yabarow turned or was following him with his body. As Mr. Oppenheimer was getting his hot water, he looked over his shoulder and saw that Mr. Yabarow was looking at him.

[87] Mr. Oppenheimer testified that he felt threatened by Mr. Yabarow because he knew he was angry that he had taken Murray’s tray. In order to ensure that there was no threat, and “to alleviate the problem before it escalated,” he stopped at Mr. Yabarow’s table on his way back to his own table. He told him that he had an agreement with someone else and to stay out of his business. Mr. Oppenheimer denied telling Mr. Yabarow to “fuck off,” but testified that Mr. Yabarow said those words to him.

[88] Mr. Oppenheimer denied that he approached Mr. Yabarow on his way back to his own table not because he felt threatened by him but because he was angry with him for challenging his right to take Murray’s tray. He agreed that it was not necessary for him to pass by where Mr. Yabarow was seated in order to return to his own table. He agreed that Mr. Yabarow remained seated as he approached him.

[89] Although Mr. Oppenheimer denied that he was “in Mr. Yabarow’s face,” he agreed that he came very close to Mr. Yabarow and that they were “foot to foot.” He came so close to him that Mr. Yabarow did not have to get out of his seat in order to push him away. Mr. Yabarow simply extended his arms in front of his chest, using an upward motion.

[90] Mr. Oppenheimer made no mention to any correctional officers about the breakfast incident or feeling threatened by Mr. Yabarow.

[91] Mr. Oppenheimer testified that according to the inmate’s code of conduct, if someone does something disrespectful toward another inmate, the disrespected inmate is expected to stand up for himself, or make a point about having been disrespected. That point can be made in various ways, such as slapping the other inmate on the side of his head with a hand or shoe.

[92] In terms of jail house culture, Mr. Oppenheimer also testified that “if someone calls you a rat or a goof or any similar term, and you don’t defend it or fight for it, other inmates will make your time in custody harder.” For example, “they will stay on the phone or make another call, preventing you from using the phone. No one will trade with you.”

[93] Mr. Oppenheimer agreed that it was possible that he and Mr. Yabarow bumped fists later that evening, but he did not recall it. He agreed that a fist bump means “Hey, everything is okay.”

Other alleged interactions with Mr. Yabarow

The switchblade gestures

[94] Mr. Oppenheimer testified that some days after the breakfast incident, Mr. Yabarow, on two occasions, made a particular hand gesture toward him – once in the soft-seating area, and once by the door to the yard.

[95] Mr. Oppenheimer understood the gestures to be a threat or an attempt to intimidate him. Mr. Yabarow did not say anything to him while making these gestures.

[96] Mr. Oppenheimer described the gesture as symbolizing a switchblade, and took it to mean that Mr. Yabarow could “shank” or knife him. He agreed that the gesture is sometimes used by inmates in a joking manner. It can also be considered as a sign of disrespect, depending on the context. Mr. Oppenheimer testified that he considered the gesture by Mr. Yabarow to be a threat because “Mr. Yabarow did not like me.”

[97] Mr. Yabarow was not questioned about the switchblade gestures during his testimony.

The bridge game

[98] Mr. Oppenheimer described an incident that allegedly took place while he was playing bridge with other inmates. One of the inmates got up and walked away at some point, leaving his cards on the table. Mr. Oppenheimer testified that Mr. Yabarow walked over and picked up the man’s cards. Mr. Oppenheimer and the other inmates asked him to put down the cards. Mr. Yabarow looked down at Mr. Oppenheimer, smirked at him, and mumbled something incoherent. Mr. Oppenheimer testified that he felt that Mr. Yabarow was daring him to do “something about it.” Eventually, the inmate who had walked away returned, and asked Mr. Yabarow what he was doing with his cards. Mr. Yabarow looked at Mr. Oppenheimer and then returned the cards to the other inmate.

[99] Mr. Oppenheimer testified that he believed that Mr. Yabarow was trying to bait him into a fight. He believed that because he did not “defend or do anything physical” during the breakfast incident, it became easy for Mr. Yabarow to prey or pick on him. He agreed, however, that Mr. Yabarow did not utter any threatening words to him.

[100] Mr. Yabarow was not questioned about the alleged bridge game incident during his testimony.

Rumours that Mr. Yabarow was going to stab Mr. Oppenheimer

[101] Mr. Oppenheimer testified that he approached Mr. Yabarow on October 23, 2017 because he had heard rumours that Mr. Yabarow was going to stab him. He testified that two inmates, whom he named during his testimony but who were not called as witnesses, had told him that he should “watch his back” because of rumours that Mr. Yabarow “had not let the breakfast incident go.” Mr. Oppenheimer could not remember when these inmates told him about the rumours. Neither of them provided him with any details, and Mr. Oppenheimer did not ask them about the source of their information. He testified, “I don’t ask that in jail.” He was not interested in having the rumour substantiated, and simply trusted the inmates who told him about it.

Events on October 23, 2017

[102] Mr. Oppenheimer testified that although he tried to keep his distance from Mr. Yabarow because the latter was charged with murder, he decided to speak to him on October 23, 2017, to “set aside the rumours” that Mr. Yabarow was going to stab him because of the breakfast incident. He testified that he felt threatened by Mr. Yabarow, and that the best way of dealing with the matter was to talk to him, rather than complaining to the correctional staff and possibly being labelled as a rat.

[103] Mr. Oppenheimer was aware of the fact that security cameras covered the area where he spoke to Mr. Yabarow. Areas not covered by cameras included the showers and washroom. Mr. Oppenheimer testified that those were the areas where inmates did drugs, “hid brew,” and got into fights because they would not get caught.

[104] Mr. Oppenheimer agreed that nothing unusual happened in the hours leading up to 1:00 p.m. on October 23, when he punched Mr. Yabarow in the face. The inmates had breakfast at the normal time, and then “hung out” in the day room. There was no interaction or outward manifestation of any issue between himself and Mr. Yabarow. Mr. Yabarow did not threaten him or make any threatening gestures toward him.

[105] Mr. Oppenheimer agreed that he approached Mr. Yabarow from behind, tapped him on the shoulder to get his attention, and told him to come and talk to him. He motioned to Mr. Yabarow with his hand to “Come here.” He repeated this motion a couple of times. When Mr. Yabarow remained seated, Mr. Oppenheimer came up to him and leaned over the chair beside him.

[106] Mr. Oppenheimer testified that between 12:56:53 p.m. and 12:57:31 p.m., he was able to converse with Mr. Yabarow about the breakfast incident. They talked back and forth, although “it was broken,” by which I understand he meant that Mr. Yabarow was speaking in broken English. Mr. Oppenheimer denied that Mr. Yabarow was telling him that he did not understand what he was saying.

[107] Mr. Oppenheimer testified that he told Mr. Yabarow that there were rumours going around that he was going to stab him over the breakfast incident. Mr. Yabarow told him that the rumours were not true – that he had not said that to anyone.

[108] Mr. Oppenheimer testified that he also told Mr. Yabarow that he believed he was in custody for murder, and that he did not feel comfortable living in the same unit with him knowing that Mr. Yabarow had ill will toward him. Mr. Oppenheimer continued to ask him about the rumours. Mr. Yabarow continued to deny that the rumours were true, and asked him who was spreading them. Mr. Oppenheimer told him “these guys,” referring to everyone in the room. He did not divulge any specific names.

[109] At 12:57:24 p.m., Mr. Oppenheimer made a gesture with his right hand by raising it in the direction of Mr Yabarow. He testified that he was referencing all the people sitting in front of Mr. Yabarow when he told him that “these guys” were the ones spreading the rumours. The gesture, however, appears to be more directed toward Mr. Yabarow rather than to the room at large or the area in front of Mr. Yabarow.

[110] When asked about the hand motion made by Mr. Yabarow that is labelled as “Middle of Gesture #2” in the still photographs, Mr. Oppenheimer testified:

I believe he just pointed at me and … said that they’re fuckin’ lying and – and – and I’m – and he said like – just fuck off. … And smiled about it and just kind of like got back to relaxing on the chair.

[111] In cross-examination, Mr. Oppenheimer stated that he was not sure who used the words, “fuckin’ lying,” but thought that it was Mr. Yabarow: “I think he told me that I was fuckin’ lying.” He described Mr. Yabarow as snapping his fingers in his face while telling him that the rumours were not true and to fuck off – behaviour that Mr. Oppenheimer regarded as disrespectful or “not nice.”

[112] Mr. Oppenheimer was asked about Gesture #4, where Mr. Yabarow touched him briefly on his shoulder, shortly after which Mr. Oppenheimer punched him in the face. Mr. Oppenheimer testified:

When he laughed about it and he said that these guys are all lying, fuck off, I told him – I told him they’re not lying. I said I think it’s true. … And when I said that I think he’s going to try and stab me, he said, “You’ll have your time,” and he pointed at me but it was like a – I – the – the way his hand was, it looked to me like a gun figure. So I took that as a threat.”

[113] In cross-examination, Mr. Oppenheimer recalled Mr. Yabarow’s words as, “Your time will come.” He agreed that Mr. Yabarow did not say that he was going to kill or hurt him.

[114] In terms of the “gun” gesture allegedly made by Mr. Yabarow, Mr. Oppenheimer testified that Mr. Yabarow had his index and middle fingers together, with his thumb out and the pinky and ring finger loosely curled.

[115] Mr. Oppenheimer testified that he perceived the threat to be that Mr. Yabarow was “going to get at me when he wants to get at me.” He was fearful because Mr Yabarow was facing a murder charge and because “there are shanks on the range at all times.”

[116] When asked why he hit Mr. Yabarow, Mr. Oppenheimer testified that he felt threatened by him. He felt that Mr. Yabarow was treating the rumours as “fake” so that Mr. Oppenheimer would let his guard down. This, combined with the two earlier “switchblade” gestures made by Mr. Yabarow, and the fact that Mr. Yabarow hovered over him after taking the cards off the bridge table, led Mr. Oppenheimer to believe that Mr. Yabarow would “come in when my back was turned.”

[117] Mr. Oppenheimer testified that his experience as an inmate, including the time that he has spent in a federal institution, has taught him to take rumours about threats seriously. Otherwise, the object of the threat can end up wounded or even dead. He testified that he had been assaulted on numerous occasions while in custody, including those times when he was housed in facilities for young offenders. It seemed to him that he was assaulted “for nothing,” and was sometimes wrongly accused of being a rat. Mr. Oppenheimer agreed that he was sometimes involved in assaults where he was the aggressor as opposed to the victim.

[118] Mr. Oppenheimer agreed that Mr. Yabarow remained seated throughout their conversation, and that his gestures, such as pulling up his legs, indicated that he was “getting comfortable.” It was at that point that Mr. Oppenheimer hit Mr. Yabarow in the face. He re-iterated that he felt threatened by Mr. Yabarow, but chose not to walk away from him. He agreed that he hit him hard – or at least hard enough to split open Mr. Yabarow’s lip. The blow caused Mr. Yabarow to fall back onto the soft-seating chairs, at which point Mr. Oppenheimer used both hands to push him onto the floor.

[119] In his examination-in-chief, Mr. Oppenheimer was asked why, after punching Mr. Yabarow in the face, he pushed him off the sofa, walked around the sofa, kicked him, and then pushed him into the wall. Mr. Oppenheimer testified that after he hit Mr. Yabarow, he made his way around the sofa because he “wasn’t going to do anything or pursue it further.” However, he then heard Mr. Yabarow speak in Somali to another inmate. He testified:

And I still felt threatened and I know that – like if you’re – if you don’t – if you don’t – if you stop hitting someone, they’re going to come at you. They’re going to – I – if the fight is not done, if there’s – if it’s not broken up then the fight is still going and the correctional officers at that point, still hadn’t been in between us. They hadn’t stopped us. And I didn’t know what he was saying to another friend, which is why I came around and I continued – I continued the assault – the fight with this guy.

[120] Mr. Oppenheimer testified that he was relieved when the correctional officers ran up to him because he knew the fight was over and that “we were both safe.”

[121] Footage from the Cells Camera shows that after Mr. Yabarow was hit in the face, he fell back onto the sofa, and put both hands up to his mouth. His legs were bent and flailing in the air. Mr. Oppenheimer moved over so that he was positioned closer to Mr. Yabarow’s head. He then leaned over the back of the sofa and, using both hands, pushed Mr. Yabarow onto the floor. It appears from the footage that Mr. Yabarow probably landed on his head or his shoulders when he fell to the floor.

[122] In cross-examination, Mr. Oppenheimer was reluctant to acknowledge that Mr. Yabarow, after being hit, was pre-occupied with his injury in the sense that he was holding his face with both hands, and did not manage to get to his feet until after Mr. Oppenheimer had pushed him onto the floor. Mr. Oppenheimer testified as follows:

Q. And immediately what we see is Mr. Yabarow – from the force of the – from the force of that blow, go onto the soft-seating area, right?

A. Yes.

Q. And what you do is, you don’t walk away at this point, do you?

A. No.

Q. And instead, you take both of your hands and push Mr. Yabarow down, correct?

A. That’s what happened.

Q. Mr. Yabarow is clearly trying to deal with what’s happened to his face, right?

A. I don’t know.

Q. He’s holding his face. You can see that.

A. I don’t know.

Q. Well, he clearly didn’t get up and confront you …

A. He got up.

Q. … did he.

A. He got up.

Q. I’m talking about when you pushed him. At this point, he didn’t get up, right?

A. When I pushed him on the floor, yes, he did get up.

Q. I’m talking about the point where he’s on – you’ve – you’ve basically sucker-punched him to the head, right?

A. I’ve punched him.

Q. And he is on the soft-seating area, right.

A. Yes.

Q. He does not get up at that point, right?

A. Yes he does.

Q. Well, let’s watch the video.

A. He gets up and goes to the end of the thing.

Q. What happens is you push him down.

A. Yes.

Q. You push him to the floor.

A. Yes.

[123] Mr. Oppenheimer agreed that when Mr. Yabarow managed to get to his feet, he walked away from Mr. Oppenheimer and toward the end of the soft-seating sofa. However, according to Mr. Oppenheimer, Mr. Yabarow was “yelling something” while “speaking in his language,” even though he was holding his hand to his mouth at the time. Mr. Oppenheimer denied that he saw blood coming from Mr. Yabarow’s face and stated that he was unaware of the extent of his injury.

[124] Mr. Oppenheimer agreed that when Mr. Yabarow was crouched down on the floor and holding both hands to his face, he walked up to him and kicked him. He agreed that Mr. Yabarow had not gotten up, had not walked toward him, and was not threatening him in any way.

[125] Although Mr. Oppenheimer agreed that he kicked Mr. Yabarow, he denied aiming specifically for his head; rather, he testified that he “kicked at him.” At another point in his evidence, he stated that his kick landed on Mr. Yabarow’s arm. A careful review of the “Dayroom 2 Camera” footage, shows that Mr. Oppenheimer’s foot made contact with Mr. Yabarow’s head.

[126] Footage from the security camera also shows that Mr. Yabarow, after being kicked in the head, got to his feet either, as Crown counsel suggested, by his own will or from the force of the kick. It is clear from the video that he tried to run in the opposite direction or away from Mr. Oppenheimer, but only managed to take two or three steps before Mr. Oppenheimer caught up to him and pushed him into the wall. However, in cross-examination, Mr. Oppenheimer, denied that Mr. Yabarow had his back to him and started running away from him after he had kicked him:

Q. And then when you kick him he actually gets up at that point, right? Either by his own will or by the force of the kick.

A. Yes, he got up, yes.

Q. And he turns his back to you, right?

A. No. He did not turn his back to me.

Q. He didn’t turn his back to you?

A. No.

Q. And he’s – he’s – he starts running at this point.

A. No.

[127] At another point in his testimony, Mr Oppenheimer repeated his assertion that Mr. Yabarow “did not try to run from me.”

[128] Mr. Oppenheimer testified that he pushed Mr. Yabarow into the wall because he believed that Mr. Yabarow still posed a threat, and that he did not know what Mr. Yabarow’s next move was going to be. He denied Crown counsel’s suggestion that Mr. Yabarow’s next move after being kicked was to try to run away from him:

Q. That’s not what happened?

A. He did not run away from me.

Q. So you’re telling me the threat is still there, after you’ve kicked him while he’s down.

A. Yeah the – the threat is still there.

Q. What threat? What threat is still there?

A. As long – in – in – as far as I know in fighting, and I’ve - and - and in prison, when an individual’s involved in an altercation, if the other individual is still moving, there’s still a problem.

Q. Yeah, if the other …

A. They’re still a threat.

[129] Exhibit 7 is a series of 14 screenshots taken from the Dayroom Camera footage. Photographs 11 to 14 show Mr. Yabarow running away from Mr. Oppenheimer, who catches up to him and then pushes him into the wall. After reviewing these photographs with Mr. Oppenheimer, Crown counsel asked him: “So you’d agree with me that Mr. Yabarow is moving away from you, yet you continue in your assault?” Mr. Oppenheimer testified: “No, I wouldn’t agree with that statement.”

[130] In addition to the fact that Mr. Yabarow was “still moving,” Mr. Oppenheimer’s other explanation for continuing to attack him was that during a fight, there is always the possibility that other inmates might get involved. He agreed that this did not happen in this case, as is evident from the screenshots in Exhibit 7, as well as the video footage itself. The footage shows that when Mr. Oppenheimer punched Mr. Yabarow, the two inmates who were to the right of Mr. Oppenheimer walked away. Others got up from their seats and dispersed. They either ignored Mr. Oppenheimer and Mr. Yabarow, or watched from a distance. Others remained seated. Not one inmate made a move toward Mr. Oppenheimer or made any effort to assist Mr. Yabarow. The inmate seated in the last chair of the back row of the soft-seating area had already gotten up and backed away before Mr. Yabarow reached that area, crouched down on the floor, and put both hands to his face. Mr. Yabarow was in that position when Mr. Oppenheimer kicked him.

[131] Mr. Oppenheimer testified that at the time, he did not know that no one would get involved and that “the threat was still there.” He disagreed with the suggestion that not getting involved in other people’s business is part of the inmate’s code.

[132] Mr. Oppenheimer denied the suggestion that he could have stopped his attack on Mr. Yabarow at any time, and did not need the correctional officers to intervene to stop the assault.

[133] Mr. Oppenheimer also disagreed with the suggestion that in the seconds that it took for him to punch Mr. Yabarow, push him off the sofa, kick him and then push him into the wall, he was focused on showing Mr. Yabarow that he was in charge of C4C, and that Mr Yabarow needed to listen to him. Mr. Oppenheimer testified that he was focused on making sure that he did not get beaten up. He denied that he was trying to teach Mr. Yabarow a lesson or send him the message not to mess with him.

[134] At no point prior to this incident did Mr. Oppenheimer disclose to any correctional officers that he felt threatened by Mr. Yabarow. Nor did he ask to be removed from the range to one of the other TSDC protective custody units. He agreed that it is not uncommon for inmates to make such requests when they are fearful of another inmate. However, in order to make that request, he would have had to fill out an Inmate Statement Form, indicating the name of the inmate with whom he was having an issue. Although this form is not shown to other inmates, correctional officers would likely interview the inmate whom he had complained about. This interview could lead to Mr. Oppenheimer being labelled a rat, which could lead to bullying and victimization for the rest of his time in custody. He testified that he would have been particularly fearful of being labelled as a rat with respect to someone charged with murder.

[135] Mr. Oppenheimer agreed that there can be various consequences for being labelled a rat, with some being more serious than others. More serious consequences would involve personal safety issues. Less serious consequences would include making prison life somewhat more difficult.

[136] Mr. Oppenheimer testified that “by not doing anything” on the day of the breakfast incident, he left the door open for Mr. Yabarow to bully him. He denied the suggestion that he had, in fact, done something – that is, he got in Mr. Yabarow’s face and told him to “fuck off” – and that he bullied him in this way because Mr. Yabarow had broken the rules of the jail by telling him “That’s not your tray.”

[137] Mr. Oppenheimer agreed that Mr. Yabarow never sought to have a fight with him, and never directly threatened him except for his alleged “gun gesture” on October 23. Mr. Oppenheimer never saw Mr. Yabarow with a shank or knife.

[138] When asked what he anticipated would happen on October 23 when he confronted Mr. Yabarow, Mr. Oppenheimer stated that he thought Mr. Yabarow would “care enough to hash out the situation, to let me feel safe about my safety, and let me know … that there absolutely is no threat.” He denied that approaching Mr. Yabarow and accusing him of threatening him behind his back could have potentially escalated the situation.

Mr. Oppenheimer’s utterance to Floor Sergeant Officer McCourt

[139] Mr. Oppenheimer agreed that shortly after the assault, and in response to Officer McCourt’s query, “What happened?” he stated that “this Somalian guy was trying to run the unit so I hit him.” He made this statement to the three correctional officers who were with him at the time. There were no inmates or other correctional officers present.

[140] Mr. Oppenheimer testified that his statement to the officers was untrue, and denied that it reflected his real motive for attacking Mr. Yabarow: namely, that he thought Mr. Yabarow was trying to run the range and wanted to teach him a lesson.

[141] Mr. Oppenheimer testified that he did not tell the officers that Mr. Yabarow had been threatening him because he was afraid of being labelled a rat, which would make his time in custody very hard. He repeated that such a label brings with it a lot of bullying, victimization, and possibly assaults. Mr. Oppenheimer testified that he had known rats to be beaten up by other inmates, and sometimes stabbed or killed. He himself had been wrongfully accused of being a rat in the past, and had suffered the consequences, including physical assaults by other inmates.

[142] Mr. Oppenheimer testified that he never complained about Mr. Yabarow’s threats or his fear for his safety to any other correctional officers or staff members, and did not request a transfer to another unit for the same reason – that is, because he feared being labelled a rat.

POSITIONS OF THE PARTIES

The Crown

[143] Crown counsel submits that the video footage speaks for itself, and shows that there is no air of reality to the issue of self-defence raised by Mr. Oppenheimer. Mr. Oppenheimer approached Mr. Yabarow, stood over him, and was the aggressor throughout their interaction. The video does not bear out Mr. Oppenheimer’s assertion that Mr. Yabarow made a gun gesture or any other threatening move. The gestures in question were simply hand movements made by Mr. Yabarow in the course of a conversation. At no point did Mr. Oppenheimer look afraid or fearful of Mr. Yabarow. Mr. Oppenheimer did most of the talking. Mr. Yabarow did not instigate the fight. He did not see the punch coming, and at no point fought back.

[144] Crown counsel submits that Mr. Oppenheimer was not a credible witness. His evidence with respect to Mr. Yabarow having made switchblade hand gestures prior to October 23, and his testimony about the alleged rumours that Mr. Yabarow intended to stab him should be rejected. It does not make sense that Mr. Yabarow, who had only been in C4C for two-and-a-half weeks by October 23 and who was new to the prison setting, would threaten Mr. Oppenheimer. Mr. Oppenheimer knew the system. Mr. Yabarow did not. Mr. Oppenheimer attacked Mr. Yabarow not out of fear but because he perceived that he was trying to run the unit and he wanted to teach him a lesson.

[145] In short, the position of the Crown is that it has established beyond a reasonable doubt that Mr. Oppenheimer did not believe on reasonable grounds that Mr. Yabarow had made a threat of force against him; the actions taken by Mr. Oppenheimer were not for the purpose of defending or protecting himself; and that even if Mr. Oppenheimer believed on reasonable grounds that Mr. Yabarow had threatened to use force, his acts constituting the assault on Mr. Yabarow were not reasonable in the circumstances. In particular, they were out of all proportion to Mr. Yabarow’s alleged threat of force. They also amounted to a pre-emptive attack on Mr. Yabarow who, based on Mr. Oppenheimer’s evidence, threatened to cause him harm at some future date. The Crown relies on the Court of Appeal’s decision in Primmer.

The Defence

[146] Defence counsel submits that the evidence supports the position that Mr. Oppenheimer was acting in self-defence, particularly when that defence is assessed in the context of prior interactions between Mr. Oppenheimer and Mr. Yabarow, the jailhouse environment, which is admittedly a dangerous and violent place, and the inmate’s code.

[147] Mr. Kaldas submits that Mr. Oppenheimer was a credible witness who did not embellish or exaggerate in giving his evidence, and that his testimony was consistent with what is seen in the video. Mr. Kaldas pointed out that Mr. Oppenheimer was aware that his interaction with Mr. Yabarow would be caught by security cameras, making it unlikely that his attack on Mr. Yabarow was premeditated.

[148] Mr. Kaldas submits that Mr. Yabarow was not a credible witness. He asks the court to find that Mr. Yabarow’s “Gesture #2” included a stabbing motion. He also submits that during “Gesture #4,” Mr. Yabarow not only touched Mr. Oppenheimer’s shoulder and made a gun figure with his hand, but also told him, “You’ll have your time” or “Your time will come.” These words and actions constituted a threat to kill or stab Mr. Oppenheimer, and caused Mr. Oppenheimer to believe that the use of force was imminent. Even if Mr. Oppenheimer did not believe that the use of force was imminent, that does not mean that the defence of self-defence must fail. In the jailhouse setting, where shanks are known to be on the range, the failure to react immediately to this threat, which was made by someone charged with second degree murder, would have exposed Mr. Oppenheimer to violence at the hands of Mr. Yabarow at some future date when his guard was down or he was at a position of disadvantage. If Mr. Oppenheimer had complained to correctional officers about the threat by Mr. Yabarow, he would have risked being labelled a rat, which would have exposed him to bullying and/or physical violence. The actions taken by Mr. Oppenheimer were reasonable in all of the circumstances.

[149] Mr. Kaldas referred to the following cases, all of which were decided prior to the amendments to s. 34 of the Criminal Code, which came into force on March 11, 2013.

1. R. v. Kong, 2006 SCC 40, [2006] S.C.R. 377, where the Court, in allowing the appellant’s appeal from his conviction for manslaughter, agreed with the conclusion reached by Wittmann J.A. in his dissenting opinion, reported at 2005 ABCA 255, 371 A.R. 90, that the defence of self-defence ought to have been put to the jury for its consideration. Mr. Kaldas referred to para. 210 of Wittmann J.A.’s decision, which includes the following quote from Professor Don Stuart’s text Canadian Criminal Law, 4th ed. (Scarborough, Ont: Carswell, 1997) at 422:

The Canadian judicial attitude to self-defence is now entrenched. It is one of flexibility. Apart from the recognition that strict proportionality is not demanded there are no automatic rules that the defender cannot strike the first blow or cannot succeed in the defence of self-defence if he could have retreated.

2. R. v. McConnell, 1996 CanLII 189 (SCC), [1996] 1 S.C.R. 1075, where the Supreme Court, in brief oral reasons, allowed the appellant’s appeal from his conviction for second degree murder, for the reasons of the dissenting judge, Conrad J.A. in the Alberta Court of Appeal, reported at (1995), 1995 ABCA 291, 32 Alta. L.R. (3d) 1 (C.A.). McConnell arose out of the killing of a penitentiary inmate, which took place in the form of a pre-emptive strike following a day of threats and mounting tension in the institution. Two inmates were charged with murder. One was convicted of manslaughter and the other of second degree murder. The trial judge left the defence of self-defence with the jury, but conveyed the impression that in order for the force to be justified, there had to be an immediacy to the apprehended assault or threats. The majority in the Court of Appeal dismissed the appeal. Conrad J.A., in her dissent, took a different view, and found that the trial judge erred in his instructions to the jury with respect to the immediacy of the apprehended assault.

Referring to R. v. Lavallee, 1990 CanLII 95 (SCC), [1990] 1 S.C.R. 852, Conrad J.A. stated that reasonableness “must be assessed in light of the special circumstances of the accused.” The question of whether the accused’s belief that he could not otherwise preserve himself was reasonable requires a consideration of the reasonable person, similarly situated, which included the prison environment in which the altercation took place. Notwithstanding that the two accused killed a fellow prisoner, when they themselves were not the subject of an immediate attack, they were nonetheless permitted to put forward a defence of self-defence. Conrad J.A. ordered a new trial. As stated, the Supreme Court of Canada, in allowing the accused’s appeal, adopted her reasons.

3. In R. v. Raphael, 2009 SKCA 16, 242 C.C.C. (3d) 45, the Saskatchewan Court of Appeal found that the trial judge erred in applying s. 34(2) of the Criminal Code and ordered a new trial. The complainant waited until the accused’s cell area was open, then ran past the guards, and entered the cell area while locking the guards out of the range momentarily. The accused struck the complainant first and a fist fight ensued where the accused punched the complainant while holding a “shank.” The court held that the trial judge erred by failing to consider the accused’s actions while having in mind the prison environment. Considering the prison environment included considering that the accused was a serving prisoner on a range populated by a rival gang. When assessing the alternatives available to the accused the trial judge was required to consider that the fight took place in a six foot wide corridor and that there were no open doors other than the door to his own cell. The corrections officers gave evidence confirming that the complainant was a convicted killer and rival gang member; that seven months before the fight the accused’s throat had been slashed; and that the accused had suffered a broken hand from an attack earlier in the day.
4. In R. v. Kerr, 2004 SCC 44, [2004] 2 S.C.R. 371, the Supreme Court upheld a trial judge’s decision finding that the Crown had not proved beyond a reasonable doubt that the requirements for self-defence were not made out. The evidence showed that the institution where the accused was held was a “dangerous place.” A qualified expert gave evidence that the deceased’s gang essentially controlled the institution through intimidation and assault. On the day of the incident the deceased and another gang member both made violent threats against the accused. On the day of the incident, the accused saw the deceased arrive at the cafeteria where he was working in the company of four other gang members. The cafeteria door was then closed. The deceased approached the accused holding a knife and the two engaged in a knife fight. This description of events came from the accused’s testimony, which was corroborated by physical evidence at the scene and other witnesses’ observations.
5. In R. v. Plain, 1997 CanLII 12441 (Ont. S.C.), Lally J. found that the Crown had not proved beyond a reasonable doubt that the requirements for self-defence were not made out. Three guards witnessed the incident. The accused testified that he attacked the complainant because he feared that the complainant would kill or seriously injure him. The accused testified that he owed the complainant money for a drug debt and further that he was afraid that the complainant would recruit others to harm him. The evidence confirmed that the complainant travelled with a group of inmates who aided the complainant when he committed assaults. The existence of the drug debt was corroborated by other inmates who testified. The complainant’s penitentiary record showed that he was “a man to be feared” who intimidated other inmates. Another inmate testified that inmates were saying that the accused’s “time had come” and that the inmate knew that “knives were being sharpened.” The trial judge concluded that the accused’s fear was reasonable “given what everybody knew” about the complainant.
6. In R. v. Tolway, 2009 NBPC 52, 352 N.B.R. (2d) 325, Jackson J. found that the Crown had not proved beyond a reasonable doubt that the requirements for self-defence were not made out. The evidence was clear that there was a “beef” between one of the accused, Tolway, and one of the complainants, Osborne, who was in segregation before the incident. Osborne was known in the institution as a violent person serving a first degree murder sentence. Osborne told other inmates that he was going to inflict serious harm on Tolway upon his release from segregation. Two inmates wrote Tolway letters to warn him about Osborne’s threats. Osborne also sent Tolway a letter which read, in part, “You’re dead.” After Osborne left segregation, Tolway attacked him while they were both in the institution’s common area. A videotape of the incident shows that Tolway attacked Osborne first. Tolway testified that Osborne showed him a weapon when he walked by him in the institution’s common area, an act which Tolway felt forced him to fight. The common area video camera’s placement made it impossible to verify whether Osborne did in fact show Tolway a weapon. However, Osborne did have an iron bar under his clothing during the incident, which he used to hit Tolway.
7. In R. v. LaKing and Simpson (2004), 2004 CanLII 39038 (ON CA), 185 OAC 242 (C.A.), the Court of Appeal upheld the trial judge’s finding that the Crown had not proved beyond a reasonable doubt that the requirements for self-defence were not made out. The complainant inmate became intoxicated after consuming alcohol and drugs. Corrections officers testified that he became belligerent and challenged them to fight. The complainant was then involved in an altercation with the three accused, Carrierre, LaKing, and Simpson, which involved a fist fight with Simpson that ended peacefully, and an incident involving weapons with Carrierre and LaKing that ended without injuries. Witnesses testified at trial that this incident occurred. When corrections officers attended, the complainant denied any altercation, and threatened to start a fire and cause disturbances. Shortly thereafter, the complainant started a fire. A third party inmate testified at trial that the complainant told him to cover the camera because the complainant was going to “kill those goofs.” While cameras were covered, the complainant attended a cell where LaKing and Simpson were housed. The complainant made a statement to the effect that he did not have a knife, and that if they wanted to fight him then they should fight. An altercation ensued where Simpson stabbed the complainant, killing him. The trial judge found that the complainant was the aggressor in each of the incidents, including the stabbing. The Court of Appeal agreed that in the circumstances, Simpson held a reasonable belief that he was going to be attacked.
8. In R. v. Perovic, 2013 BCSC 2339, an application for disclosure was allowed, based on the logic that because of the historic responses in prisons to “rats,” disclosure relating to other inmates’ belief that the accused was a “rat” would be relevant to a s. 34 defence.

APPLICABLE LEGAL PRINCIPLES

[150] Section 34(1) of the Criminal Code states:

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 the use or threat of force; and

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

[151] Section 34(2) sets out a number of factors that the court must consider in determining whether the act committed is reasonable in the circumstances:

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.

[152] Pursuant to s. 34, the preconditions to the defence are as follows:

1. The accused must believe on reasonable grounds that force is being used or the threat of force is being made;
2. The threat of force must be unlawful or the accused must reasonably believe it to be unlawful;
3. The accused’s own act must be committed for the purpose of defence against that force;
4. The act committed must be reasonable in the circumstances based on the non-exhaustive, compulsory list of factors in s. 34(2).

[153] There is no burden on Mr. Oppenheimer to prove the elements of the defence. Rather, the burden is on the Crown to disprove one or more of the four elements beyond a reasonable doubt, failing which the defence must succeed.

[154] In R. v. Primmer, (unreported, August 27, 2015, upheld at 2018 ONCA 306), McKay J., at paras. 58-60, summarized the first, third, and fourth components of the preconditions as follows:

There are two components to the first precondition. The accused must believe that force is being used or the threat of force is being made. That is a subjective test which requires the accused to actually believe that the threat of force is being made. The belief of the accused must be reasonable. That is an objective test which examines what a reasonable person placed in the same situation would believe. The reasonable person must be placed in the same factual situation that the accused was in. The reasonable person should be modified in the following two ways:

1. By ascribing the accused’s relevant experiences to the hypothetical reasonable person. That involves considering the factual context of the event, such as the history between the parties;

2. By ascribing relevant, innocent personal characteristics from the accused to the hypothetical reasonable person. That includes characteristics relating to vulnerability and perception.

With respect to precondition number three, the accused must act for a defensive purpose. This represents a rare case of motive being an element in a criminal case. The accused must act for the purposes of self-defence, as opposed to, for example, acting out of anger.

With respect to precondition four, that is an evaluation of condition. The court must consider the relevant circumstances of the person, and the other parties in the act in order to determine whether the act is reasonable in the circumstances. This is a modified objective test which considers the non-exhaustive, compulsory criteria listed in s. 34(2).

[155] In assessing the preconditions to the availability of the defence in the present case, I must consider the following:

1. Did Mr. Oppenheimer believe on reasonable grounds that the threat of force was being made? This precondition requires Mr. Oppenheimer to subjectively believe that force was being threatened to be used against him. His subjective belief must be reasonable, given the relevant events, and can include his related past interactions with Mr. Yabarow, and any personal characteristics of the two men that could reasonably affect his perception of harm, such as size, age, and physical capabilities.
2. Was the threat of force unlawful? The circumstances are such that any threat of force against Mr. Oppenheimer by Mr. Yabarow would be unlawful.
3. Were Mr. Oppenheimer’s acts in punching, pushing and kicking Mr. Yabarow committed for the purpose of defence against force? This evaluation does not inquire into the reasonableness of Mr. Oppenheimer’s purpose; rather, it focuses on Mr. Oppenheimer’s subjective state of mind. The right to defend against force is not to be used as a means to injure someone or to enable the use of force for the purpose of venting anger, frustration, or retaliation. It is meant only as a means of protection against unlawful or reasonably perceived unlawful threats of force. However, as noted by McKay J. in Primmer, at para. 65, this precondition can be met even if the accused acted for mixed purposes, including anger or frustration, so long as there is a reasonable doubt about whether he was also acting for the purpose of defence against force.
4. If so, were Mr. Oppenheimer’s acts reasonable in the circumstances? This determination involves the application of a form of modified objective evaluation where the reasonableness of Mr. Oppenheimer’s actions are judged bearing in mind relevant and appropriate considerations personal to him, including the history of his interactions or communication with Mr. Yabarow.

[156] In accordance with the principles in W.(D.), I bear in mind the following:

(1) If I accept the evidence in support of the defence of self-defence, I must find Mr. Oppenheimer not guilty.

(2) If I do not accept the evidence in support of the defence of self-defence, but am left with a reasonable doubt by it, I must find Mr. Oppenheimer not guilty.

(3) Even if I am not left with a reasonable doubt by the evidence in support of the defence of self-defence, I must still go on to determine whether or not, on the basis of all the evidence, Mr. Oppenheimer is guilty.

ANALYSIS AND FINDINGS

[157] At the time of the altercation on October 23, 2017 Mr. Yabarow, age 36, was new to the prison environment. He had only been at the TSDC and in C4C for 18 days. Prior to his October 5, 2017 arrest, he had never been in custody. At the time of the breakfast incident, he had been in C4C for only one or two days.

[158] By October 23 Mr. Oppenheimer, age 26, had been at the detention centre for two months, and had spent one-and-a-half of those months in C4C. Mr. Oppenheimer had served time in youth facilities, provincial reformatories, and a federal penitentiary. Unlike Mr. Yabarow, he was very familiar with the prison environment and the inmate’s code.

[159] In October 2017 both men weighed about 150 pounds. However, Mr. Oppenheimer, at 5 feet 9 inches tall, was shorter than Mr. Yabarow and had a somewhat heavier build. Mr. Yabarow was not asked during his testimony to give his height. However, I agree with defence counsel’s submission that Mr. Yabarow was over 6 feet tall. It is apparent from the video and photographs taken of him at the hospital that he was quite thin at that time. In the end, height is not a significant factor, as Mr. Yabarow was seated when Mr. Oppenheimer punched him in the face.

[160] Defence counsel submits that Mr. Yabarow was not a credible witness, and described him as confrontational and evasive in giving his evidence. I agree that there were times when Mr. Yabarow took issue with the questions posed to him. However, many times his objections stemmed from the lack of context contained in the question. For example, Mr. Yabarow acknowledged that during the breakfast incident, he said “fuck” to Mr. Oppenheimer and pushed him away. However, it was important in Mr. Yabarow’s mind that the circumstances surrounding his behaviour were clear – that is, Mr. Oppenheimer was speaking to him in an angry voice and had said “fuck” to him while standing over him. Mr. Yabarow pushed Mr. Oppenheimer because he felt intimidated by him.

[161] Similarly, Mr. Yabarow conceded that on October 23, 2017 Mr. Oppenheimer spoke to him in a quiet or normal tone of voice. However, Mr. Yabarow objected to defence counsel’s characterization of the tone as “friendly”, stating that he did not view the person who had beaten him up as “friendly.” They were not friends.

[162] Mr. Yabarow’s inexperience regarding the “jail system” got him into trouble within a day or two of his arrival at C4C. When Mr. Oppenheimer picked up Murray’s tray, Mr. Yabarow unwittingly violated the inmate’s code by telling him, “That breakfast is someone else’s, not yours.” Mr. Oppenheimer testified that he felt threatened by Mr. Yabarow. He agreed, however, that when Mr. Yabarow made this comment, he uttered no verbal threats, made no threatening gestures toward Mr. Oppenheimer, and remained seated at the table with his own tray. Mr. Oppenheimer was standing on the other side of the table and across from Mr. Yabarow.

[163] In his examination-in-chief, Mr. Oppenheimer testified that when he picked up Murray’s tray, Mr. Yabarow asked him “What the fuck are you doing?” In cross-examination he agreed that the words spoken by Mr. Yabarow were to the effect that the tray did not belong to him and to put it down, which is in accord with Mr. Yabarow’s recollection of what he said.

[164] Mr. Oppenheimer also testified that when he walked over to get hot water for his coffee, Mr. Yabarow followed him with his eyes and gave him the “middle finger,” which Mr. Oppenheimer took as a threat. I note that Mr. Yabarow was never asked in cross-examination whether he kept his eye on Mr. Oppenheimer or insulted him with the alleged gesture. I also note that Mr. Yabarow was new to the unit, and there was no history of animosity between him and Mr. Oppenheimer at that time. It was one thing for Mr. Yabarow, as a newcomer to C4C with no prior experience in a prison environment, to unwittingly breach the inmate’s code by telling Mr. Oppenheimer that the tray he was taking belonged to someone else. It would have been an entirely different matter for him to intentionally provoke or insult Mr. Oppenheimer – an inmate whom he did not know – by giving him “the middle-finger.” In the end, I find that Mr. Oppenheimer’s testimony with respect to that alleged gesture is not credible.

[165] After retrieving the hot water, Mr. Oppenheimer did not return directly to his own table but went out of his way to confront Mr. Yabarow. Mr. Oppenheimer testified that normally, out of fear, he kept some distance from inmates charged with murder. However, that factor obviously did not deter him on this occasion, as he walked right up to Mr. Yabarow and told him to mind his own business. It appears that Mr. Oppenheimer did not feel threatened by Mr. Yabarow; rather, he was angry with him for questioning his right to take Murray’s tray, which Mr. Oppenheimer took as a sign of disrespect.

[166] According to Mr. Oppenheimer, he approached Mr. Yabarow in order to “ensure that there was no threat” and to “alleviate the problem before it escalated.” Mr. Oppenheimer’s method of ensuring that there was no threat was to intimidate Mr. Yabarow. He walked right up to Mr. Yabarow, who remained seated, and stood very close to him. Mr. Oppenheimer denied that he was “in Mr. Yabarow’s face,” but that is, in fact, an accurate description, given his admitted close proximity to Mr. Yabarow. Mr. Oppenheimer then told Mr. Yabarow that he had a private agreement with someone regarding the tray, that it was none of his business, and ordered him to “stay out of my business.” Mr. Oppenheimer denied telling Mr. Yabarow, “Fuck you.” However, I accept Mr. Yabarow’s evidence that Mr. Oppenheimer did, in fact, utter those words, and that Mr. Yabarow returned the insult and pushed him away.

[167] During his testimony, Mr. Yabarow took full responsibility for the breakfast incident, acknowledging that he triggered it by the comment he made when Mr. Oppenheimer picked up the tray. He testified: “It was my fault.” He has since learned that according to the “system of the jail,” an inmate must never intervene in any matter involving other inmates.

[168] As far as Mr. Yabarow was concerned, any bad feelings resulting from the breakfast incident were resolved later that evening when he and Mr. Oppenheimer “bumped fists.” Mr. Yabarow understood that this meant that there was peace between them.

[169] There was no verbal communication between Mr. Oppenheimer and Mr. Yabarow during the interval between the breakfast incident and October 23. Their brief interaction on October 23 was recorded, albeit without audio. The video is the best evidence of what took place at that time.

October 23, 2017

[170] It was Mr. Oppenheimer who initiated contact with Mr. Yabarow on October 23. I disagree with defence counsel’s submission that Mr. Oppenheimer approached Mr. Yabarow timidly or deferentially. Mr Yabarow was seated on the sofa when Mr. Oppenheimer came up behind him. Mr. Oppenheimer tapped him twice on the right shoulder and then on the left shoulder in order to get his attention. When Mr. Yabarow turned his head, Mr. Oppenheimer gestured to him with his hand to “come here.” There was nothing deferential or timid about this gesture, which Mr. Oppenheimer repeated a couple of times. Mr. Oppenheimer testified that he also told Mr. Yabarow to “come and talk” to him. Mr. Yabarow, in response, turned in his seat to face Mr. Oppenheimer.

[171] At 12:56:59.396 p.m., Mr. Oppenheimer leaned over the back of the sofa and started speaking to Mr. Yabarow. At 12:57:37.448 p.m., or about 40 seconds later, Mr. Oppenheimer punched Mr. Yabarow in the face. It appears from the video that during that brief interval, Mr. Oppenheimer did most of the talking.

[172] According to Mr. Oppenheimer, he and Mr. Yabarow spoke about a number of topics before he hit him. They conversed “back and forth” with respect to the breakfast incident. According to Mr. Oppenheimer, Mr. Yabarow spoke in broken English but gave no indication of having any difficulty in understanding what Mr. Oppenheimer was saying. Mr. Oppenheimer testified that he told Mr. Yabarow about the rumours that he had heard – that is, that Mr. Yabarow was going to stab him because of the breakfast incident. Mr. Yabarow told him that the rumours were false and denied telling anyone that he was going to stab him. Mr. Oppenheimer told Mr. Yabarow that he believed that he was in custody for murder, and that he did not feel comfortable living in the same unit with him, knowing that Mr. Yabarow had ill will toward him. Mr. Yabarow continued to deny that the rumours were true, and asked him who was spreading them. Mr. Oppenheimer testified that in response to this question, he gestured with his hand to all the people in the dayroom who were in front of Mr. Yabarow. As noted earlier, Mr. Oppenheimer’s testimony as to what he was trying to convey to Mr. Yabarow by this gesture does not jibe with the gesture itself, which was directed more toward Mr. Yabarow. Mr. Oppenheimer testified that he told Mr. Yabarow that he believed the rumours and that Mr. Yabarow was going to try to stab him. Mr. Yabarow then made the gun gesture and told him: “You’ll have your time.”

[173] Given that they were only conversing for about 40 seconds before Mr. Oppenheimer struck Mr. Yabarow, it is questionable that there was sufficient time for the full conversation, as reported by Mr. Oppenheimer, to have taken place. I note that according to Mr. Yabarow, there was no mention of or discussion about the breakfast incident, as he and Mr. Oppenheimer had “made peace” in that regard when they bumped fists. Mr. Oppenheimer did not recall that they bumped fists, but did not deny that it happened.

[174] Mr. Yabarow’s testimony that he was having difficulty hearing or understanding what Mr. Oppenheimer was saying to him is supported by the video: there are two occasions when Mr. Yabarow leaned his head toward Mr. Oppenheimer or put his right ear closer to him, thereby indicating that he was having trouble understanding and/or hearing him. In between those two attempts to make out what Mr. Oppenheimer was saying, Mr. Yabarow gestured with his right hand by turning his palm up, which is consistent with his testimony that he was asking Mr. Oppenheimer, “What are you saying?” Contrary to Mr. Oppenheimer’s testimony, I find that Mr. Yabarow, by word and gesture, did indicate to him that he was having difficulty understanding him.

[175] Defence counsel submits that when Mr. Yabarow smiled just before he was hit, he was actually smirking in a condescending way after flicking his fingers at Mr. Oppenheimer, making the “gun gesture,” and telling him that “your time will come.” As stated below, I find that Mr. Yabarow’s hand gestures, as seen on the video, did not constitute a threat or threats. This conclusion is strengthened by the fact that if Mr. Yabarow had threatened Mr. Oppenheimer by word or gesture, it would make no sense for him to have remained seated, thereby leaving himself open to retaliatory action by Mr. Oppenheimer. At the time of the alleged threat and gestures, Mr. Yabarow was in a very vulnerable position vis-à-vis Mr. Oppenheimer, who was standing behind him and leaning over him. As Mr. Yabarow testified and common sense dictates, if Mr. Yabarow had threatened to kill Mr. Oppenheimer, he would have stood up so that he could better defend himself in case Mr. Oppenheimer responded to the threat with physical violence.

[176] The fact that Mr. Yabarow remained seated not only supports his testimony that he did not threaten Mr. Oppenheimer by word or gesture, but also makes improbable Mr. Oppenheimer’s testimony as to what he was saying to Mr. Yabarow at that time. According to Mr. Oppenheimer, he told Mr. Yabarow that he believed Mr. Yabarow was going to stab him. If Mr. Oppenheimer was, in fact, accusing Mr. Yabarow of planning to stab or kill him, it is unlikely that Mr. Yabarow would have stayed in his chair, looking comfortable and relaxed, and leaving himself vulnerable to any physical violence that Mr. Oppenheimer might decide to inflict on him.

[177] In my view, defence counsel’s submission that Mr. Yabarow’s smile was actually a smirk and that he was acting in a condescending way toward Mr. Oppenheimer is not borne out by the video. Mr. Yabarow testified that he smiled because he did not want to “look badly” or angry while Mr. Oppenheimer was talking to him. He stated that otherwise, Mr. Oppenheimer might have acted aggressively toward him. Mr. Yabarow explained that in the prison setting, when someone talks to you, you have to appear friendly. Otherwise, he explained, you could cause a fight.

[178] It is clear from the video that Mr. Yabarow did not see the punch coming, and that he at no time fought back. He was sitting on the sofa, having just gotten into a comfortable or relaxed position with his knees bent and his feet on the chair when Mr. Oppenheimer hit him.

[179] As noted earlier, Mr. Oppenheimer does not appear to be afraid or intimidated by Mr. Yabarow. To the contrary, he appears to be self-assured and confident. In particular, he does not look afraid when Mr. Yabarow made gesture #2.

[180] Defence counsel submits that gesture #2 constituted a stabbing motion. Mr. Oppenheimer did not describe it as such in his testimony. Mr. Oppenheimer testified that Mr. Yabarow snapped his fingers in his face, while telling him that the rumours were not true. Mr. Oppenheimer gave two versions of what Mr. Yabarow allegedly said to him at that time. He initially stated that Mr. Yabarow told him that “they,” referring to the inmates who had allegedly told Mr. Oppenheimer that Mr. Yabarow planned to stab him, were “fuckin’ lying.” In cross-examination, he testified that Mr. Yabarow accused Mr. Oppenheimer of “fuckin’ lying,” and also told him to “fuck off.”

[181] In my view, neither defence counsel’s nor Mr. Oppenheimer’s description of gesture #2 is accurate. Mr. Yabarow made no stabbing motion with his right hand. Nor did he snap his fingers in Mr. Oppenheimer’s face. His hand did not come close to Mr. Oppenheimer’s face. Mr. Yabarow, who was initially resting his arm on the back of the chair, raised his arm slightly. His arm remained bent at the elbow. Mr. Yabarow testified that he opened up his fingers with his palm up, and described how he then turned his palm down and closed his fingers. He then placed his hand on his right thigh, and brought his legs up so that his feet were resting on the chair. He then wrapped his hand around his right ankle. His left hand was wrapped around his left ankle. Mr. Yabarow testified that gesture #2, which he made as he was talking, was simply signaling to Mr. Oppenheimer that he did not understand what Mr. Oppenheimer was telling him. Whether or not that is true, there is nothing about the gesture that appears to be threatening, and Mr. Oppenheimer does not appear to have been taken aback or intimidated by it.

[182] Nor does Mr. Oppenheimer look afraid at 12:57:35 p.m., when he says Mr. Yabarow told him, “You’ll have your time” and made the alleged gun gesture or gesture #4. In cross-examination, Mr. Oppenheimer recalled the words used by Mr. Yabarow as “Your time will come.”

[183] In describing the gun gesture, Mr. Oppenheimer testified that Mr. Yabarow had his index and middle fingers together, with his thumb out and the pinky and ring finger loosely curled. A careful examination of the footage from the Cells Camera and Dayroom 2 Camera, viewed in real time, as well as frame-by-frame, clearly shows that no such gesture was ever made. While sitting in a relaxed pose, Mr. Yabarow briefly tapped Mr. Oppenheimer’s shoulder with the back of his hand. The palm of his hand was open and remained open as he brought his hand back down to his lap. Moreover, it is questionable whether Mr. Oppenheimer even observed Mr. Yabarow’s hand or fingers at the relevant time, as he was looking down as Mr. Yabarow raised and lowered his arm: See Cells Camera at 12:57:35.183 p.m. to 12:57:35.916 p.m. I reject Mr. Oppenheimer’s testimony that Mr. Yabarow made a gun gesture with his hand.

[184] Based on the video, Mr. Oppenheimer’s account of his interaction with Mr. Yabarow was problematic in many other respects. At times, it seemed that Mr. Oppenheimer was testifying about events recorded on some other video and not the video before the court.

[185] The video shows that after Mr. Oppenheimer struck Mr. Yabarow in the face, Mr. Yabarow fell back onto the sofa and put both hands up to his face. He was clearly preoccupied with his injury and in considerable pain. His legs were flailing in the air. There was no indication of retaliation or a suggestion that he was in a position to get up and strike back at Mr. Oppenheimer. However, Mr. Oppenheimer tried to downplay the effect that the punch had on Mr. Yabarow, and refused to even admit that Mr. Yabarow was holding his hands to his face, despite the video footage that clearly shows that this was the case:

Q. Mr. Yabarow is clearly trying to deal with what’s happened to his face, right?

A. I don’t know.

Q. He’s holding his face. You can see that.

A. I don’t know.

[186] In a similar vein, Mr. Oppenheimer refused to acknowledge that Mr. Yabarow did not get up from the sofa after he was punched. Yet the video shows that Mr. Yabarow was lying on his back, and did not manage to get to his feet until after Mr. Oppenheimer had pushed him onto the floor:

Q. I’m talking about the point where he’s on – you’ve – you’ve basically sucker-punched him to the head, right?

A. I’ve punched him.

Q. And he is on the soft-seating area, right?

A. Yes.

Q. He does not get up at that point, right?

A. Yes he does.

[187] Mr. Oppenheimer testified that he continued his assault on Mr. Yabarow after punching him and pushing him off the sofa because he heard Mr. Yabarow “yelling something” in Somali to another inmate. He did not know what Mr. Yabarow had said, but feared that the other inmate might join in the fight.

[188] Mr. Oppenheimer’s testimony that Mr. Yabarow yelled out to someone after he was struck in the face is not credible, and I reject it as fabrication on his part. Mr. Yabarow denied that he said anything, in either English or Somali, because he was too busy attending to his injuries and the blood. The video supports Mr. Yabarow’s evidence in this regard. The video shows that after Mr. Yabarow got to his feet, he began moving away from Mr. Oppenheimer, and was stooped forward with his head down. His hand was at times at his mouth or just below his mouth. At no point does he appear to say anything or attempt to get anyone’s attention. When he reached the end of the soft-seating area, he crouched down on the floor and put both hands to his mouth. Blood from his face can be seen dripping onto the floor.

[189] In an attempt to minimize Mr. Yabarow’s injury, Mr. Oppenheimer denied that he saw blood coming from Mr. Yabarow’s mouth, and stated that he was unaware of the extent of his injury.

[190] It was suggested by the defence that the inmate who was seated at the end of the same row of chairs where Mr. Yabarow had been sitting was the individual to whom Mr. Yabarow allegedly called out. However, the movements of that inmate clearly show that he had no intention of becoming involved in this matter. As soon as Mr. Yabarow got to his feet and started moving away from Mr. Oppenheimer, this inmate got out of his chair and distanced himself from him. As Mr. Oppenheimer approached Mr. Yabarow and kicked him, the inmate, who had stopped and looked back toward them, took a few more steps backward. At no point did he offer any assistance to Mr. Yabarow or give any indication that he was inclined to do so.

[191] Mr. Oppenheimer acknowledged that no other inmates interfered in his attack on Mr. Yabarow, but testified that he did not know that at the time, and that “the threat was still there” – hence his continued assault on Mr. Yabarow. However, the video shows that after punching Mr. Yabarow and pushing him off the sofa, Mr. Oppenheimer very calmly and coolly walked around the soft-seating area as he made his way to where Mr. Yabarow was crouched down on the floor, with his hands to his face. Mr. Oppenheimer had ample time to realize during that second or two that no other inmates were joining in the fray. All of them had either gotten up and were dispersing, or simply remained in their seats. It would also have been abundantly clear to Mr. Oppenheimer that Mr. Yabarow was not going after him and in no condition to go after him.

[192] Mr. Oppenheimer testified that he “kicked at” Mr. Yabarow, and denied aiming specifically for his head while Mr. Yabarow was crouched on the floor. The video footage shows otherwise. The video clearly shows Mr. Oppenheimer kicking Mr. Yabarow in the head. His foot made contact with Mr. Yabarow’s head, and not with his arm, as suggested by Mr. Oppenheimer.

[193] Incredibly, Mr. Oppenheimer insisted that Mr. Yabarow did not try to run away from him after he was kicked. Mr. Oppenheimer maintained this position even though the video and still photographs clearly show Mr. Yabarow running away, or at least trying to run away. Unfortunately, he only managed to take two or three steps before Mr. Oppenheimer caught up to him and pushed him into the wall.

[194] Mr. Oppenheimer testified that he took this action because Mr. Yabarow, in his view, still posed a threat. When asked what threat Mr. Yabarow could possibly have posed at this point, Mr. Oppenheimer stated that Mr. Yabarow was “still moving.” He explained that when a fight takes place in a prison environment, there is “still a problem” if the other individual continues to move.

First Precondition to Availability of Defence of Self-defence

[195] In terms of the first pre-condition to the defence of self-defence, I am satisfied beyond a reasonable doubt that Mr Oppenheimer did not believe on reasonable grounds that there was a threat of force being made against him by Mr. Yabarow on October 23. I find that Mr. Yabarow did not threaten to use force against Mr. Oppenheimer, either by word or gesture, and that Mr. Oppenheimer did not believe that force was being threatened to be used against him. Mr. Oppenheimer’s account of his interaction with Mr. Yabarow on that date, wherein he alleges that Mr. Yabarow told him “you’ll have your time” or “your time will come,” and that he made threatening gestures, was neither reliable nor credible.

[196] As noted earlier, it is highly unlikely that there was sufficient time prior to Mr Oppenheimer punching Mr. Yabarow for the full conversation, as alleged by Mr. Oppenheimer, to have taken place. Mr. Oppenheimer appears to have done most of the talking. Mr. Yabarow’s demeanour throughout his interaction with Mr. Oppenheimer and prior to his being struck was relaxed and friendly, and is inconsistent with someone making threats or threatening gestures. Mr. Yabarow’s hand gestures and body language, including leaning his head toward Mr. Oppenheimer or putting his ear closer to him, are consistent with having some difficulty understanding what Mr. Oppenheimer was saying to him. Mr. Yabarow testified that he did not have a sufficient understanding or command of the English language at the time to have made the alleged threats – that is, “you’ll have your time” or “your time will come.” In addition, it is highly unlikely that Mr. Yabarow, while making threats or threatening gestures, would have remained seated, leaving himself vulnerable to retaliation by Mr. Oppenheimer, who was standing behind and leaning over him at the time. It is also highly unlikely that Mr. Yabarow would have remained seated and relaxed in his chair had Mr. Oppenheimer been accusing him of planning to stab or kill him or of telling other inmates that he planned to stab or kill Mr. Oppenheimer.

[197] At no point did Mr. Oppenheimer appear fearful. It was Mr. Oppenheimer who approached the seated Mr. Yabarow and leaned over him. Mr. Oppenheimer’s body language was not deferential. He did not appear to be afraid of Mr. Yabarow. To the contrary, Mr. Oppenheimer appeared confident and in control of himself and the situation at all times.

[198] The fact that Mr. Yabarow was charged with murder was not, in itself, a reason for Mr. Oppenheimer to feel threatened by him. This was not the first time that Mr. Oppenheimer had been housed in protective custody with inmates who were charged with murder. Certainly the fact that Mr. Yabarow was charged with murder did not deter Mr. Oppenheimer from “getting in his face” and attempting to intimidate him during the breakfast incident. Mr. Yabarow’s behaviour during the breakfast incident may have been disrespectful of Mr. Oppenheimer but, as I have found, it did not amount to a threat.

[199] Similarly, Mr. Yabarow’s behaviour during the alleged bridge game incident, as described by Mr. Oppenheimer, may have been disrespectful but it was not threatening. I note that Mr. Yabarow was never questioned during his testimony about the bridge game incident.

[200] Mr. Oppenheimer’s evidence regarding the switchblade gestures allegedly made by Mr. Yabarow was vague. He could not say when they took place, and only gave a general description of where they occurred after being pressed in cross-examination. He acknowledged that such gestures are sometimes made jokingly by inmates. They can also be a sign of disrespect. Mr. Yabarow denied making any threatening hand gestures toward Mr. Oppenheimer following the breakfast incident. He was never specifically asked if he made switchblade gestures toward him prior to October 23.

[201] Mr. Oppenheimer’s evidence regarding the alleged rumours that Mr. Yabarow was going to stab him was also vague. He testified that two inmates told him that he should “watch his back” because Mr. Yabarow “had not let the breakfast incident go.” Although this information would have been shocking or disturbing, Mr. Oppenheimer had no recollection as to when or where he was told about these rumours, and never asked the inmates for any details or the source of their information. I note that unlike some of the cases cited by defence counsel, there was no evidence from other inmates or correctional officers in this case confirming or tending to support the existence of the alleged rumours.

[202] Mr. Yabarow denied that he threatened to stab Mr. Oppenheimer. He also denied telling other inmates that he intended to stab Mr. Oppenheimer because of some unresolved issue with respect to the breakfast incident. Mr. Yabarow did not lay any blame on Mr. Oppenheimer for that incident. Rather, Mr. Yabarow took full responsibility for having caused it by breaching the inmate’s code – that is, by telling Mr. Oppenheimer, “That’s not your tray.” As far as Mr. Yabarow was concerned, he and Mr. Oppenheimer made their peace later that night: “After the very first incident, we took peace or we made peace. That’s something that was in existence.” I accept Mr. Yabarow’s evidence that he did not tell other inmates that he was planning to stab Mr. Oppenheimer out of some kind of lingering grudge or animosity arising from the breakfast incident.

[203] Based on all of the evidence and the submissions of counsel, I am satisfied beyond a reasonable doubt that Mr Oppenheimer did not believe on reasonable grounds that Mr. Yabarow made a threat of force against him on October 23.

Second Precondition to Availability of the Defence of Self-defence

[204] As stated earlier, the circumstances are such that any threat of force against Mr. Oppenheimer by Mr. Yabarow would be unlawful.

[205] I have found that Mr. Yabarow did not make a threat of force against Mr. Oppenheimer, and that Mr. Oppenheimer did not believe on reasonable grounds that Mr. Yabarow made a threat of force against him.

Third Precondition to Availability of the Defence of Self-defence

[206] The third precondition requires that Mr. Oppenheimer’s acts must be committed for the purpose of defending or protecting himself from the threat of force by Mr. Yabarow.

[207] Following his attack on Mr. Yabarow, Mr. Oppenheimer was immediately removed from C4C. He was standing in a hallway with correctional officers Slogan and Tran when Floor Sergeant McCourt approached. McCourt first asked Slogan and Tran what had happened. One of them responded that there had been an “altercation.” McCourt then turned to Mr. Oppenheimer and asked him the same question. Mr. Oppenheimer responded:

This Somalian guy was trying to run the unit so I hit him.

[208] McCourt then left and entered the day room.

[209] This utterance supports the Crown’s position that Mr. Oppenheimer did not attack Mr. Yabarow out of fear but because he perceived that Mr. Yabarow was trying to run the range and he wanted to teach him a lesson.

[210] Mr. Oppenheimer acknowledged making the statement but testified that he lied to McCourt. He testified that he did not tell him that Mr. Yabarow had threatened him because he did not want to be labelled as a rat.

[211] For the reasons already stated, I am satisfied beyond a reasonable doubt that Mr. Oppenheimer did not believe on reasonable grounds that there was a threat of force being made against him by Mr. Yabarow. His attack on Mr. Yabarow was for some other reason. I am satisfied that that reason was articulated by Mr. Oppenheimer himself when he made the utterance to McCourt. The Crown has disproved the third precondition beyond a reasonable doubt.

[212] However, even if the Crown had not met its burden with respect to the first three preconditions, I am satisfied that the defence of self-defence must fail on the basis that Mr. Oppenheimer’s response to any threat of force that he believed Mr. Yabarow was making was not reasonable in the circumstances.

Fourth Precondition to Availability of the Defence of Self-defence

[213] Having considered the factors set out in s. 34(2), I am satisfied beyond a reasonable doubt that Mr. Oppenheimer’s actions in his attack on Mr. Yabarow were not reasonable.

[214] The nature of the alleged threat by Mr. Yabarow was somewhat vague or ambiguous: “You’ll have your time” or “Your time will come.” Mr. Oppenheimer agreed that Mr. Yabarow never directly stated that he was going to stab or kill him.

[215] The alleged threat was uttered while Mr. Yabarow was seated and Mr. Oppenheimer was standing behind and leaning over him. In this sense, Mr. Oppenheimer had a significant physical advantage over Mr. Yabarow.

[216] One of the factors to be considered under s. 34(2) is the extent to which the use of force was imminent. Although defence counsel submitted that Mr. Oppenheimer perceived the use of force to be imminent, I do not find that to be the case. Mr. Oppenheimer’s evidence was to the effect that Mr. Yabarow would cause him harm at some time in the future. He testified that he perceived the threat to be that Mr. Yabarow was “going to get me when he wants to get at me” and that he would “come in when my back was turned.” He felt threatened because “there are shanks on the range at all times.” There is nothing that Mr. Yabarow said or did to suggest that he was about to attack Mr. Oppenheimer. His demeanour was friendly and relaxed. There is no evidence that Mr. Yabarow was in possession of a shank, and Mr. Oppenheimer had never seen him with one. A vague belief on the part of Mr. Oppenheimer that Mr. Yabarow may have been carrying a weapon would not justify the degree of force that Mr. Oppenheimer employed against him.

[217] In terms of other available means of responding to Mr. Yabarow’s threat to use force, Mr. Oppenheimer testified that he could have told the correctional officers that Mr. Yabarow had threatened him, and asked to be moved to another unit. Reporting a threat by another inmate, however, could lead to his being labelled a rat. He testified that he had personally experienced the consequences of being falsely accused of being a rat. Those consequences can vary, with some being less serious than others. Serious consequences would involve personal safety issues. Less serious consequences would include making prison life somewhat more difficult, such as not being able to use the phone. In any event, Mr. Oppenheimer agreed that he could have just walked away from Mr. Yabarow.

[218] Mr. Oppenheimer was the aggressor throughout this incident. Mr. Yabarow was sitting in the soft-seating area and watching television when Mr. Oppenheimer came up behind him, tapped him on the shoulders and gestured for him to “come here.” It was Mr. Oppenheimer who initiated the conversation. As stated earlier, his approach to Mr. Yabarow cannot be described as deferential or timid.

[219] Although Mr. Oppenheimer and Mr. Yabarow were about the same weight, Mr. Oppenheimer was somewhat more muscular. Mr. Yabarow was quite thin. He was taller than Mr. Oppenheimer but remained seated throughout their interaction. Mr. Yabarow did not see the punch coming, and took no defensive action at any point during Mr. Oppenheimer’s attack on him.

[220] I accept Mr. Yabarow’s version of the breakfast incident. Mr. Yabarow did nothing more than say “fuck” to Mr. Oppenheimer after Mr. Oppenheimer had said the same thing to him, and pushed Mr. Oppenheimer away in a defensive action. This behaviour may have been disrespectful, but it did not constitute a threat. Nor did the bridge game incident rise to the level of a threat.

[221] Finally, Mr. Oppenheimer’s vicious attack on Mr. Yabarow was out of all proportion to the threat that he perceived when Mr. Yabarow allegedly told him: “You’ll have your time” and made the alleged gun gesture. Mr. Oppenheimer effectively incapacitated Mr. Yabarow when he sucker punched him. Mr. Yabarow fell onto his back on the sofa. He was clearly in a significant amount of pain. His legs were flailing in the air, and he was holding his hands to his face. He was certainly not in a position to get up and strike back at Mr. Oppenheimer. While Mr. Yabarow was in this vulnerable state, Mr. Oppenheimer leaned over the sofa and, using both hands, pushed him onto the floor. Once on the floor, Mr. Yabarow struggled to his feet. While stooped over, with his head down and his hand at his mouth, Mr. Yabarow began moving away from Mr. Oppenheimer. When he reached the end of the soft seating area, he crouched down on the floor and held his hands to his mouth. Blood from his face was dripping onto the floor. Mr. Oppenheimer calmly and coolly walked around the sofa, approached Mr. Yabarow, and kicked him in the head while he was crouched on the floor. Again, Mr. Yabarow tried to get away from Mr. Oppenheimer. Mr. Oppenheimer, however, continued to pursue him, caught up to him, and pushed him into a wall with such force that he broke Mr. Yabarow’s arm.

[222] As stated earlier in these reasons, it is clear that Mr. Yabarow never called out to any other inmate, either in English or Somali, for assistance. It is also clear that Mr. Oppenheimer was well aware of the fact that no other inmate posed a threat to himself or was going to come to Mr. Yabarow’s assistance. Mr. Oppenheimer had every opportunity to stop his attack on Mr. Yabarow. He did not need the correctional staff to intervene.

[223] Mr. Oppenheimer testified that he continued to attack Mr. Yabarow because Mr. Yabarow was “still moving.” He explained that in a prison environment, there is “still a problem” if the other individual continues to move. I recognize that the prison setting and the inmate’s code must be considered as crucial contextual factors in assessing self-defence. However, as stated by the Court of Appeal in Primmer, at para. 6, that context does not trump the Criminal Code’s legal definition of self-defence. Mr. Oppenheimer’s attack on Mr. Yabarow was an extreme and unnecessary application of force.

[224] Based on the foregoing, I find that the Crown has established beyond a reasonable doubt that Mr. Oppenheimer’s response was unreasonable in the circumstances. Self-defence does not apply to the circumstances of this case.

CONCLUSION

[225] For the reasons given, Mr. Oppenheimer is found guilty of aggravated assault as charged in the indictment.

Garton J.

Released: May 29, 2019

COURT FILE NO.: CR-1850000295-0000

DATE: 20190529

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

SHAWN OPPENHEIMER

Reasons for judgment

Garton J.

Released: May 29, 2019