COURT FILE NO.: 18/117 DATE: 20190607
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – DARREN ROTH Defendant
COUNSEL: G. Fowler, for the Crown F. Brennan, for the Defendant
HEARD: January 28-31, 2019
REASONS FOR JUDGMENT Justice A. K. Mitchell (ORALLY)
Introduction
[1] Darren Roth is charged with 3 offences arising out of a bar fight which occurred on February 17, 2017.
[2] Mr. Roth is charged with two counts of assault with a weapon, namely a bottle and a glass, contrary to s. 267 (a) of the Criminal Code of Canada (the “Code”) and one count of aggravated assault contrary to s. 268(2) of the Code with respect to injuries suffered by Dave Moran during an altercation which took place on February 17, 2017 at Marino’s Pub and Restaurant in London.
[3] Following the close of the Crown’s case, Crown counsel acknowledged that the evidence did not support a conviction on count #2 being assault with a weapon, namely a glass, and that count was withdrawn.
Factual Background
[4] On February 16, 2017, after finishing an electrical job at a nearby mall, the complainant, Dave Moran, together with his co-workers, Charlie Pike and James Porter headed to Marino’s Pub and Restaurant for some drinks. They arrived at approximately midnight on February 17, 2017.
[5] Earlier that evening, the accused, Darren Roth, had planned to meet up with some friends and sing karaoke at Marino’s. When he arrived at approximately 11:30 pm on February 16th, he learned from the bar server, “Lindsay” that his friends had already gone home. Mr. Roth sat at a table in the bar area. He ordered some food and Lindsay provided him with complimentary beers. Mr. Roth had consumed approximately 3 bottles of beer before Mr. Moran and his co-workers arrived.
[6] Mr. Roth and Mr. Moran were high school acquaintances. In February 2017 both men were in their early 30’s.
[7] Upon entering Marino’s, Mr. Moran recognized Mr. Roth and approached him and spoke with him for a few minutes. Mr. Pike and Mr. Porter went to the bar where Mr. Porter purchased a pitcher of beer for himself and Mr. Moran. Mr. Pike purchased a bottle of beer for himself. A short time later, Mr. Moran joined his co-workers at a table located beside the pool table at the rear of the bar.
[8] Approximately an hour and a half later, Mr. Roth joined Mr. Moran, Mr. Pike and Mr. Porter at their table. He had a beer bottle in his hand. Shortly after arriving at the table, Mr. Roth stood up from the table and struck Mr. Moran in the face. Mr. Moran suffered lacerations to his face and was taken to hospital. It is alleged Mr. Roth struck Mr. Moran’s face with a beer bottle. Mr. Roth admits only to striking Mr. Moran in the face with his fist but claims he acted in self-defence.
High School Incident
[9] Mr. Roth testified about an incident in high school between him and Mr. Moran. He recounted that Mr. Moran had asked him to smoke marijuana with him and his friends. As they walked together to a wooded area, Mr. Roth was confronted by three of Mr. Moran’s friends who accused him of abusing a mutual female friend of theirs. Mr. Moran then struck Mr. Roth in the face two or three times resulting in bruising. Mr. Roth did not report the incident and did not receive treatment for his injuries.
[10] Mr. Moran denies any physical altercation between himself and Mr. Roth in high school but admitted that the one fist fight between them he can recall was consensual. He explained that his reference in his statement to police to having “put down” Mr. Roth in reference to this incident in high school, was a verbal not physical “put down”.
[11] Both Mr. Pike and Mr. Porter testified that Mr. Moran told them about an incident between him and Mr. Roth in high school. The story they recounted told to them by Mr. Moran is consistent with Mr. Roth’s version of events.
Interaction between Mr. Moran and Mr. Roth upon arriving at Marino’s
[12] Mr. Roth testified that when Mr. Moran entered the bar he approached his table and greeted him with a handshake and asked him whether he had any problem with the incident from high school. Mr. Roth said he responded that he was “over it”. He recalls that Mr. Moran then bought a pitcher of beer and poured Mr. Roth a glass. Mr. Moran invited him to join him and his friends at their table when he was done eating.
[13] Mr. Moran denies speaking with Mr. Roth about the high school incident when he arrived, denies purchasing a pitcher of beer and pouring a glass for Mr. Roth. Instead, he recalls that he and his co-workers after purchasing beer at the bar went directly to the back of the bar and sat at a table.
[14] Mr. Porter and Mr. Pike each testified that upon arriving at Marino’s, Mr. Moran approached Mr. Roth who Mr. Moran had identified to them as a high school friend and spoke with Mr. Roth for a few minutes while they purchased beer and sat at a table in the rear of the bar. They both recall Mr. Moran buying Mr. Roth a beer.
The Incident
[15] Mr. Moran testified that he did not invite Mr. Roth to join his table rather the accused approached their table holding a beer bottle and asking for more beer. He observed Mr. Roth to be intoxicated. Mr. Moran has no memory after Mr. Roth joined them at the table. He does not recall the assault or when it took place. He testified that his next memory was being unable to see, bleeding from his face and trying to feel his way to the exit.
[16] Both Mr. Pike and Mr. Porter recall Mr. Roth singing karaoke and Mr. Pike was able to recall the title of the song. Mr. Porter described Mr. Roth’s singing and demeanour as “drunken karaoke”. Both Mr. Pike and Mr. Porter recall Mr. Roth approaching the table with a beer bottle in his hand. Mr. Porter described Mr. Roth as intoxicated – slurring his speech, disheveled in appearance and jumping from topic to topic. Mr. Pike had no recollection of Mr. Roth’s demeanour and whether he was intoxicated. They both recalled Mr. Roth standing briefly at the table and then taking a seat at the end of the table with Mr. Porter and Mr. Moran seated on either side of Mr. Roth.
[17] Both Mr. Pike and Mr. Porter testified that Mr. Roth was seated at the table no more than 5 minutes before he stood up and struck Mr. Moran in the face. Mr. Pike says that Mr. Roth then picked up a glass and hit Mr. Moran a second time in the face. Both Mr. Porter and Mr. Pike recall Mr. Moran being struck twice – once with a bottle and once with a pint glass. On cross-examination, Mr. Porter acknowledged Mr. Roth may only have struck Mr. Moran once. Mr. Pike says the two strikes occurred within seconds of one another. Mr. Porter recalled that the glass or bottle broke when it made contact with Mr. Moran.
[18] Mr. Pike was seated farthest from Mr. Roth at the table. He estimated the distance to be 5 feet. He says he could not hear what was discussed between Mr. Roth and Mr. Moran at the table but admits he was not paying attention. He described the conversation as “nothing unfriendly – just small talk and banter.” He says that Mr. Roth did not ask repeatedly for beer from the pitcher and he pointed out that Mr. Roth had a beer when he joined them.
[19] Mr. Porter’s recollection of the incident is somewhat different. He recalls that after Mr. Roth joined them at the table, introductions were made and Mr. Roth asked Mr. Porter for a ride home which request Mr. Porter refused. Unlike Mr. Pike, Mr. Porter says he could hear the conversation between Mr. Moran and Mr. Roth. He does not recall anything aggressive discussed between the accused and the complainant. However, he did recall Mr. Moran saying to Mr. Roth that he needs to stop getting into trouble to which Mr. Roth responded “trouble finds me.”
[20] Mr. Porter says he got a negative feeling from Mr. Roth and was hoping he would leave the table although no one asked Mr. Roth to leave. He feared that something bad would happen because he had refused Mr. Roth’s request for a ride, he was aware of the high school incident and Mr. Roth had just declared “trouble finds him”.
[21] Mr. Roth’s version of events differs significantly from that of Mr. Porter and Mr. Pike. Mr. Roth testified that after singing karaoke he went outside to have a cigarette. As he passed their table he told them he would be back to sit. Upon coming in from outside, he was handed a bottle of beer by the bartender and he joined Mr. Moran and his friends at their table.
[22] Mr. Roth recalls that all three of the men greeted him and the initial interaction was friendly. Mr. Moran asked him whether he was working and whether he had children or a girlfriend. Mr. Roth testified that he did not perceive Mr. Moran to be genuinely interested in his responses to these questions.
[23] Mr. Roth testified that Mr. Moran then asked him repeatedly whether he remembered the situation in high school and whether he had a problem with it. Mr. Roth ignored the repeated questioning and did not respond which he says angered Mr. Moran. He said Mr. Porter appeared anxious and was giving him strange looks. He said he felt belittled when asked about whether he had a job or a family.
[24] Mr. Roth recalled that while he was seated at the table a man was playing pool and at one point Mr. Pike got up from the table and spoke with this individual. Both Mr. Porter and Mr. Pike deny seeing anyone playing pool at the time of the incident and Mr. Pike denies speaking with this individual.
[25] Mr. Roth testified that Mr. Moran then asked him when he was going to step up and be a man and live a grown-up life and stated twice that “he was going to jail for beating up a bitch”. He says that the second time Mr. Moran stated this, he raised his voice. Mr. Porter denies Mr. Moran made this statement or any negative statement.
[26] Mr. Roth testified that he felt surprised by these statements and believed Mr. Moran was trying to provoke or incite him. Mr. Roth says he was intimidated by the situation and was worried he was not in a safe situation so he picked up his beer bottle, stood up and attempted to walk away from the table. He denies he was angry.
[27] Mr. Roth testified that when he stood up and turned around a male individual was standing in his way. He says he asked him to move but this individual did not move rather puffed up his chest and stood his ground. At this point, Mr. Roth says he believed he was being prevented from leaving and was afraid.
[28] Mr. Roth also testified that at this same time he noticed Mr. Moran was getting up from the table and he believed Mr. Moran was preparing himself to start a physical encounter. Mr. Roth then punched Mr. Moran on the left side of his face with his right fist. Mr. Roth testified that he instinctively and without thinking followed through with his left fist which was holding the beer bottle striking Mr. Moran on the right side of his face. He cannot recall what happened to the beer bottle and whether it struck Mr. Moran’s face or whether it broke. He denies striking Mr. Moran in the face with a pint glass.
Exhibit #2
[29] Exhibit #2 is a still photograph from video surveillance inside Marino’s on February 17, 2017. Exhibit #2 depicts Mr. Roth standing immediately next to a male individual who is seated with his head turned away from Mr. Roth. Mr. Roth testified this individual is Mr. Moran. Mr. Moran testified it is not him because he recalls wearing black not white clothing. Mr. Roth is holding a beer bottle in his left hand and his right hand is clenched in a fist. Mr. Roth is looking at the seated male. Another male is standing to the right side and behind Mr. Roth facing in the same direction. This individual is holding a pool cue in his right hand parallel to his body and appears to be holding a coat or other item of clothing in front of his chest. Mr. Roth identified this individual as “Henry”. Neither Mr. Porter nor Mr. Pike recognized the man holding the pool cue.
[30] Exhibit #2 appears to depict Mr. Moran with his hands raised in a defensive manner. Mr. Roth testified this photograph was taken moments before he struck Mr. Moran with his fist.
The Tackle
[31] Mr. Porter testified that immediately after the assault he tackled Mr. Roth. He pinned him on the floor for a number of seconds and then let him go. He admitted that he would have hit him if he had held him for much longer. He described Mr. Roth as on his back and unable to move.
[32] Mr. Roth testified that after he struck Mr. Moran, Mr. Porter jumped out of his seat knocking a number of items on the table over. Mr. Porter rushed and tackled him.
Events Outside the Bar and the Arrest
[33] Mr. Pike says he ran after Mr. Roth and called 911 to report the assault. As he exited the bar he observed Mr. Roth walking around the parking lot and he described him as “bewildered”. When Mr. Roth saw Mr. Pike he began running south down Adelaide Street.
[34] Mr. Pike testified that he followed Mr. Roth as he ran east on a side street off Adelaide. When he lost sight of Mr. Roth he returned to Adelaide Street and observed the police arresting Mr. Roth.
[35] Mr. Roth testified that after Mr. Porter released him a waitress was yelling at him to leave the bar. He said that at that point he no longer felt safe inside the bar. Once outside, he says he began pacing back and forth in the parking lot.
[36] While pacing in the parking lot, Mr. Roth observed Henry and Mr. Pike coming toward the front door. Mr. Roth testified that when Mr. Pike exited the bar and saw him, he started to run towards him. Mr. Roth says he told him to stay away and began running towards the edge of the parking lot.
[37] Mr. Roth testified he was no more than 60 feet from the front door of Marino’s when he was stopped by police. He recalls Mr. Pike was still pursuing him. Mr. Roth does not recall the police officer demand that he stop running.
[38] Constable Aristone testified that he was dispatched at 1:34 a.m. on February 17, 2017 on a Code 1 with lights and sirens. He was in full uniform and in a marked cruiser when he arrived on the scene. Constable Aristone testified (with the assistance of his duty book notes to refresh his memory) that when he arrived on the scene he observed a male individual with significant bleeding to his hand running south on the east side of Adelaide Street.
[39] Constable Aristone says that he had to ask Mr. Roth three times to stop running. It is admitted that the point of arrest to the front door of Marino’s is 364 feet and not 60 feet as estimated by Mr. Roth. Constable Aristone testified that he was unable to handcuff Mr. Roth to the rear because of the extensive bleeding to his hand. He described Mr. Roth’s demeanour as erratic explaining that at times he was belligerent, disrespectful and rude and other times cooperative. He recalls Mr. Roth swearing at the hospital.
[40] Constable Aristone noticed a strong smell of alcohol on Mr. Roth’s breath and he assumed he was intoxicated. He observed Mr. Roth to be staggering at the hospital although Mr. Roth did not have slurred speech.
[41] In contrast and materially inconsistent with the evidence of Constable Aristone, Mr. Roth says he was at all times cooperative with police. He denies running away. He denies his hand was bleeding profusely. He says he did everything asked of him by Constable Aristone and he did not raise his voice, yell or swear.
Injuries Suffered by Mr. Moran
[42] Mr. Moran was taken to hospital following the incident. Mr. Moran testified that he suffered a broken nose, broken teeth, lacerations to his face, vision impairment, a concussion and has difficulty with short-term and long-term memory loss. No medical records were filed to corroborate Mr. Moran’s injuries and memory loss. Photographs of the injuries to Mr. Moran’s face were taken within days of the incident. These photographs show discolouration and bruising under both eyes, a stitched cut of approximately 1 inch running from the top of his nose down the left side of his nose under the corner of his left eye. A cut of approximately 1 cm in length is observed running vertically beside his left eyebrow. A cut is observed on his cheek just below the outer corner of his right eye. Mr. Moran received 5 to 10 stitches to close the cuts on his face.
[43] Mr. Porter testified that following the incident Mr. Moran was off work a couple of days and possibly up to one week.
[44] At the time of trial (approximately two years after the incident) no surgeries had been required or scheduled. During the trial, Mr. Moran had an optometry appointment. The outcome of that appointment is unknown. This was Mr. Moran’s first appointment with respect to his eye since he received treatment for his injuries in hospital on February 17, 2017.
Factual and Legal Findings
[45] I will now consider the evidence which I do accept and make the factual and legal findings necessary to render a decision in this matter.
[46] Mr. Moran has little or no recollection of the events of February 17, 2017. To the extent he does recall, his recollection of events was inconsistent with the evidence of Mr. Pike and Mr. Porter. I accept that the incident in high school unfolded in the manner described by Mr. Roth. This version of events was corroborated by the evidence of Mr. Pike and Mr. Porter as to the manner in which Mr. Moran described this incident to them. On balance, I accept little of Mr. Moran’s evidence.
[47] Mr. Pike’s evidence and Mr. Porter’s evidence was consistent with respect to the material events. Mr. Porter was responsive to questions during cross-examination. Mr. Porter acknowledged that he and Mr. Moran shared two pitchers of beer but says that by the time he drove home he was sober. At the time of the incident Mr. Porter estimated he was a 5 on a scale of 1 to 10 with respect to his level of intoxication. I do not find that his ability to recall the events of February 17, 2017 to be significantly impacted by his alcohol consumption. I find the evidence of Mr. Porter to be reliable. I also find him to be a credible and impartial witness. At the time of the offence, Mr. Porter was Mr. Moran’s boss. At the time of trial, Mr. Moran no longer worked with Mr. Porter.
[48] Mr. Porter had no difficulty seeing Mr. Moran or hearing what was being said and discussed between Mr. Moran and Mr. Roth while Mr. Roth was sitting at the table. He was the same distance from Mr. Roth as Mr. Moran. I accept his evidence that Mr. Moran did not say or behave in an aggressive manner towards Mr. Roth immediately before Mr. Roth struck him.
[49] Mr. Porter was dispassionate and fair in his testimony. He readily admitted he was not certain whether Mr. Roth struck Mr. Moran once or twice. He admitted to his own alcohol consumption that night. He candidly acknowledged he consulted with Mr. Pike about the events of that night and that he could not recall whether Mr. Roth struck Mr. Moran once or twice.
[50] Constable Aristone gave his evidence in a direct, fair and measured manner. His memory of events and his observations were refreshed by his reference to his duty book notes made near-contemporaneous to the event or observation in question. His evidence was not seriously challenged on cross-examination and there is no apparent reason to question his credibility and the reliability of his evidence. In contrast, Mr. Roth did not make notes at or about the time of these same events and observations and relies entirely on his recollection almost two years later. In addition, Mr. Roth had consumed a significant amount of alcohol and there is evidence he was intoxicated thereby affecting the reliability of his evidence and his ability to recall the events accurately. To the extent there are material inconsistencies in the evidence of Constable Aristone and Mr. Roth with respect to his behavior and demeanour after the incident and before, during and after arrest, I accept the evidence of Constable Aristone over the evidence of the accused. I also find that Constable Aristone’s evidence materially undermines the credibility of Mr. Roth.
[51] During cross-examination Mr. Pike did not recall sending a Facebook friend request to Mr. Roth shortly after the incident. However, I find he was not attempting to deceive the court when he advised he had no contact with Mr. Roth since the events of February 17, 2017. It is understandable he did not remember his Facebook request made almost 2 years prior. Mr. Pike was unequivocal in his evidence that Mr. Roth swung a beer bottle at Mr. Moran without provocation or warning. On balance, I find Mr. Pike was an honest and responsive witness and accept this evidence.
Legal Framework
Aggravated Assault
[52] To find Mr. Roth guilty of aggravated assault, Crown counsel must prove each of the following essential elements beyond a reasonable doubt:
i. that Darren Roth intentionally applied force to Dave Moran; ii. that the force applied to Dave Moran was unlawful i.e., not applied in self-defence; iii. that Mr. Moran did not consent to the force intentionally applied by Mr. Roth; iv. that Mr. Roth knew Mr. Moran did not consent to the force that he applied; and v. that the force applied by Mr. Roth wounded, maimed, disfigured or endangered the life of Dave Moran.
Assault with a Weapon
[53] To find Mr. Roth guilty of assault with a weapon, Crown counsel must prove each of the following essential elements beyond a reasonable doubt:
i. that Darren Roth intentionally applied force to Dave Moran; ii. that the force applied to Dave Moran was unlawful i.e., not applied in self-defence; iii. that Mr. Moran did not consent to the force intentionally applied by Mr. Roth; iv. that Mr. Roth knew Mr. Moran did not consent to the force that he applied; and v. that a weapon was involved in the assault on Mr. Moran.
[54] The focus of the trial was on the question of whether Mr. Roth was acting in self-defence.
Self-Defence
[55] Mr. Roth claims he acted in self-defence. The Crown submits that on the evidence this defence does not have an “air of reality.”
[56] The “air of reality” test is that formulated by the Supreme Court in R. v. Cinous and summarized at paras. 57 and 58 in R. v. Grant, 2016 ONCA 639 as:
A trial judge must put to a jury any defence that has an air of reality. An air of reality exists when there is evidence in the record on which a properly instructed jury, acting reasonably, could acquit. Put differently, the court asks: is the evidence relied on reasonably capable of supporting the inferences required to acquit the accused? If the answer is yes, the defence must be put to the jury. If the answer is no, the defence must not be put to the jury. To do so in the absence of an air of reality to the defence would invite confusion and unreasonable verdicts. Whether a defence has an air of reality is a question of law. Thus, the trial judge errs in law by not leaving with the jury a defence that has an air of reality: R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at para. 55.
In Cinous, McLachlin C.J.C. and Bastarache J., writing jointly, elaborated on how the air of reality test should be applied.
- The trial judge should consider all the evidence but assume the evidence relied on by the accused is true. The trial judge should not make findings of credibility.
- The air of reality test applies to each element of a defence. As long as each element is supported by some direct evidence, or may be inferred from circumstantial evidence, the trial judge must put the defence to the jury.
- The trial judge should not decide the substantive merit of the defence, or even whether the defence is likely or not likely to succeed. Whether the defence has merit is for the jury to decide. The trial judge should simply determine whether there is a “real issue” that should be left for the jury.
- If the defence has an objective reasonableness component - as self-defence does – that component cannot be established by direct evidence. The trial judge must decide whether it can reasonably be inferred from circumstantial evidence; that is, evidence from which the fact in issue can be inferred.
- To assess whether circumstantial evidence is reasonably capable of supporting the inferences the accused wants the jury to draw, the trial judge is entitled to engage in a “limited weighing” of the evidence.
[57] Section 34 of the Code codifies the common law defence of self-defence. This defence contains three elements. They are:
i. Mr. Roth believed on reasonable grounds that force was being used or threatened against him by Mr. Moran; ii. Mr. Roth struck Mr. Moran in the face with a beer bottle for the purpose of defending or protecting himself from that use or threat of force; and iii. Mr. Roth’s conduct was reasonable in the circumstances taking into consideration the nature of the force or threat; 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; the person’s role in the incident; whether any party to the incident used or threatened to use a weapon; the size, age, gender and physical capabilities of the parties to the incident; the nature, duration and history of any relationship between the parties to the incident; the nature and proportionality of the person’s response to the use or threat of force; and whether the act committed was in response to a use or threat of force that the person knew was lawful. s. 34(2) of the Code.
[58] The three elements under section 34(1) of the Code have both an objective and a subjective component. As was noted in Grant, the objective component focuses on the reasonableness of the accused’s beliefs and perceptions. For the defence to be left with the jury both the subjective and objective components of each element of the defence must have an “air of reality”.
[59] I will now consider the accused’s evidence, assuming it to be true, in assessing whether the defence has an air of reality. Mr. Roth testified:
(a) He felt Mr. Moran was trying to belittle him with his repetitive questioning and it made him feel confused. (b) Mr. Moran was making him feel bad about himself. He felt Mr. Moran was trying to provoke or incite a bad reaction from him. (c) The last thing said before he stood up to leave was Mr. Moran saying in a loud voice that he heard Mr. Roth was going to jail for beating up a bitch. (d) Mr. Moran never threatened Mr. Roth verbally. (e) Mr. Moran was not blocking Mr. Roth’s exit. Mr. Roth admitted he was able to exit but did not attempt to do so. (f) When he stood up, the individual Mr. Roth identified as “Henry” was standing in his way. Mr. Roth asked him to move. Henry puffed his chest and stood his ground. However, Henry did not threaten him with the pool cue he was holding or say anything to him. (g) He observed Mr. Porter sitting half-on and half-off the bench and believed that was physically hindering him from exiting. (h) He was fearful of Mr. Porter because his body posture suggested that he would not let him pass by to exit. (i) He was frightened because he believed he was being circled. (j) Mr. Pike was not threatening or intimidating. (k) The only person with a weapon was “Henry” with a pool cue. (l) No one told Mr. Roth not to move or leave the table. (m) No one else at Marino’s paid any attention to Mr. Roth. Aside from Mr. Moran and his coworkers no one else caused him to fear for his safety or frighten him. (n) Mr. Moran did not raise his hands or voice towards Mr. Roth. (o) Mr. Moran was sitting and Mr. Roth was standing when he struck Mr. Moran. (p) He was aware there were three ways to exit the restaurant from the table where he was sitting with Mr. Moran -- right or left around the pool table or out the back hallway.
[60] Based on this evidence I find that Mr. Roth had the necessary subjective beliefs to support a claim of self-defence. I will focus on the requirement that his subjective beliefs be reasonably held. I find that there was no reasonableness component to all of the three elements although the focus of my analysis is on the first element – namely, whether Mr. Roth’s belief that the threat of force being made against him by Mr. Moran was reasonably held.
[61] Mr. Roth testified that Mr. Moran’s repetitive questioning about the high school incident and insincere questioning about his personal life was intended to provoke him not to intimidate him. Mr. Roth felt intimidated by Henry’s conduct and Mr. Porter’s conduct which suggested he was being circled and not permitted to leave. He admitted Mr. Moran did not raise his hands or voice or say any threatening words. Mr. Roth admitted he could have exited past Mr. Moran but chose not to. According to Mr. Roth’s evidence, Mr. Moran’s only threatening conduct was when he started to rise to his feet. He admitted neither Mr. Moran nor Mr. Porter had a weapon. Mr. Porter did not threaten Mr. Roth. Mr. Moran stating: “you are going to jail for beating up a bitch” is a statement and not a threat.
[62] I find that Mr. Roth’s subjective belief as to the threat Mr. Moran posed was not reasonably held and, therefore, there is no air of reality to the defence of self-defence.
[63] I must now consider whether the Crown has proven beyond a reasonable doubt Mr. Roth is guilty of assault with a weapon and/or aggravated assault.
Analysis
[64] Mr. Roth chose to testify. He was under no obligation to do so. Regardless of his testimony, the burden of proof never transfers to the defendant. At all times, it is the Crown who must prove beyond a reasonable doubt that Mr. Roth committed an assault with a weapon and/or an aggravated assault on Mr. Moran.
[65] Because of Mr. Roth’s testimony, I must analyse the evidence using the three-pronged approach established in R. v. W.(D.), [1991] 1 S.C.R. 742. This approach is as follows:
First, if I believe Mr. Roth’s evidence that he did not commit these offences I must acquit him. Second, if I do not believe his testimony but I am left in reasonable doubt by it, I must acquit him. Third, even if I am not left in doubt by Mr. Roth’s evidence, I must ask myself whether, on the basis of the evidence which I do accept, I am convinced beyond a reasonable doubt by that evidence of Mr. Roth’s guilt.
[66] I must assess his evidence in the same way that I assess the testimony of the other witnesses. However, even if I do not believe Mr. Roth’s testimony but his evidence leaves me with a reasonable doubt, I must find him not guilty.
[67] Last, even if Mr. Roth’s evidence does not leave me with a reasonable doubt regarding any of the essential elements of the offences with which he has been charged, I may only convict Mr. Roth if, on the evidence that I do accept, the Crown has proven beyond a reasonable doubt that Mr. Roth committed either or both of these offences.
[68] Crown counsel conceded that the evidence of Mr. Pike and Mr. Porter, even if I was to accept it in its entirety, raises a reasonable doubt as to whether Mr. Roth struck Mr. Moran a second time with or without a pint glass. Accordingly, Crown counsel has, quite properly, withdrawn Count #2.
[69] Both Mr. Moran and Mr. Porter described Mr. Roth as intoxicated when he approached their table. Mr. Moran described him as having jerking motions and a loud demeanour. Mr. Porter described him as having slurred speech and “being disheveled --- a bit out of sorts and not having it all together”. Mr. Pike could not recall Mr. Roth’s demeanour or whether he was intoxicated. During cross-examination, Mr. Roth admitted his ability to perceive events which transpired on February 17, 2017 was partially impaired by alcohol.
[70] I find Mr. Roth’s evidence to be unreliable due to his level of intoxication. His recollection of the events following the incident and his arrest are markedly different than the admitted evidence as to the distance between the entrance to Marino’s and the point of arrest and, more importantly, his evidence is materially at odds with the evidence of Constable Aristone which I accept in its entirety. I do not accept Mr. Roth’s evidence and when considered in the context of the evidence as a whole does not leave me with a reasonable doubt with respect to the offence of assault with a weapon.
[71] I accept the evidence of Mr. Porter and Mr. Pike and I find that Mr. Roth struck Mr. Moran once with a glass object which broke when it came into contact with Mr. Moran’s face. I find that the glass object was the beer bottle which is visible in the still shot from the video surveillance and which Mr. Roth arrived at the table holding.
[72] The evidence of Mr. Porter with respect to what was said and discussed at the table before Mr. Roth struck Mr. Moran went largely unchallenged. Similarly, the evidence of Mr. Porter that Mr. Roth struck Mr. Moran with a beer bottle or pint glass and not his fist was corroborated by the evidence of Mr. Pike. Evidence of the cuts to Mr. Roth’s hand and Mr. Moran’s face is consistent with the evidence of Mr. Porter and Mr. Pike that the bottle or glass smashed when it made contact with Mr. Moran’s face. Mr. Roth testified that he only intended to strike Mr. Moran with his fist and that when he struck Mr. Moran with the beer bottle he was holding, it was not intended because it occurred as a result of an instinctive follow-through with his left hand. In attempting to stop the momentum of the follow-through the beer bottle slipped from his hand and may have made contact with Mr. Moran’s face but any contact was not intended. I do not accept this evidence when considered in the context of all of the evidence in support of the Crown’s case.
[73] Based on all of the evidence, I find beyond a reasonable doubt that it was Mr. Roth’s intention to strike Mr. Moran in the face with a beer bottle and cause injury and, in fact, did so. Therefore, Crown counsel has proven beyond a reasonable doubt that Mr. Roth assaulted Mr. Moran with a weapon, namely a beer bottle contrary to s. 267 (a) of the Code.
[74] Crown counsel argues that Mr. Roth should also be convicted of an aggravated assault. Section 268(1) of the Code provides that everyone commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant.
[75] Pierce J. in R. v. Vincent, 2011 ONSC 100 at paragraph 14 aptly summarized the assault hierarchy as:
The Criminal Code provides an escalating series of assault-type offences from assault (s. 266), to assault causing bodily harm (s. 267) to aggravated assault (s. 268), which includes wounding. In my view, Parliament intended to reflect the increasing gravity of each succeeding offence in the definition of and penalty for each kind of assault. When the prescribed maximum penalty is considered an aggravated assault is the most serious of the three types of assault.
[76] Mr. Moran’s injuries depicted in the photographs evidence multiple cuts and abrasions to his nose and right cheek and significant bruising. One of these cuts was stitched. There is no evidence of any permanent injuries affecting his eyesight or cognitive function. There is no evidence of scarring suggesting disfigurement. Mr. Moran has not received any treatment for his injuries since the treatment he received the day of the assault. As was noted in R. v. Ashkani, 2017 ONSC 7345 at para. 55, citing with approval R. v. R. (G.) (2005), 2005 SCC 45, 198 C.C.C. 3d 161 at paras. 25-34, assault causing bodily harm is an included offence of aggravated assault, where the injury does not constitute wounding, disfigurement or maiming but is more than merely transient or trifling in nature.
[77] I find that the Crown has not met its burden to prove that the injuries suffered by Mr. Moran were sufficient to support a conviction for aggravated assault, however, I find that Mr. Moran’s injuries were sufficient to constitute assault causing bodily harm.
Disposition
[78] In summary I find the following:
(i) Count No. 1: guilty of assault with a weapon, namely a bottle; (ii) Count No. 2: withdrawn; and (iii) Count No. 3: not guilty of aggravated assault but guilty of the included offence of assault causing bodily harm.
“Justice A.K. Mitchell” Justice A. K. Mitchell
Released: June 7, 2019