Court File and Parties

COURT FILE NO.: 228-19 DATE: 20200521 (Orally)

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – Jason Richard Borden Defendant

COUNSEL: Konrad De Koning, for the Crown Robert Farrington and J. Prosser, for the Defendant

HEARD: May 21, 2020

Templeton J. (orally)

Endorsement

[1] At the commencement of trial, Jason Borden pleaded guilty to the offence of having possession of a loaded prohibited fire arm contrary to s. 95(2) of the Criminal Code.

[2] He then pleaded not guilty to (a) discharging a firearm with intent to endanger the life of Darius Salmon contrary to s. 244 (2); (b) aggravated assault contrary to s. 268 (2); (c) using a firearm while committing an indictable offence contrary to s. 85 (c).

[3] The trial proceeded in relation to these three counts.

The Evidence and Findings of Fact

[4] The Crown elicited evidence from three witnesses namely:

1. Darius Salmon, the complainant in this case;
2. Sue-Ellen Salmon, the complainant’s wife; and
3. Gefared Budhai, an acquaintance of the Salmon family who was also known as “Dwight”

[5] The evidence of this third witness was included at the trial by way of a transcript of his testimony provided at the preliminary hearing in this case. The transcript was filed on the consent of both the Crown and defence counsel.

[6] The defence called Mr. Borden to testify on his own behalf.

[7] Documentary evidence and a video disc were also filed in this case.

[8] On the basis of all of the evidence that I accept is both credible and reliable, I make the following findings of fact:

[9] In the evening of October 27, 2018, Mr. Salmon was acting as a DJ at a friend’s house party located on Marconi Boulevard in London. He was there with his wife, SueEllen, and her niece. Also in attendance at this party were Mr. Budhai and Mr. Borden who was a guest along with his girlfriend, Sarah Lillycrop.

[10] Mr. Borden did not know Mr. Salmon but had met his wife Sue Ellen on numerous occasions while he was at his father’s home which was located not too far from the Salmon home. Mrs. Salmon confirmed in her testimony that she had seen Mr. Borden almost daily that summer and that he called her Sue or Auntie when referring to her.

[11] Miss Lillycrop’s mother lived four or five houses away from the Salmon residence.

[12] The day before the party, Mr. Borden had acted on information he had received about an unclaimed gun that had been left hidden. He had searched for and found the gun and then taken possession of it. On examination, he had found it to be a rusty, older 22 calibre firearm with a wooden handle. When he opened the chamber, he also found it to be loaded with a single round of ammunition.

[13] When he left for the party on October 27, 2018, Mr. Borden opted to take the gun with him but hid it outside before entering the house and mingling with other guests.

[14] On arrival at the party itself, Mr. Borden chatted briefly with Mrs. Salmon but did not speak to her husband Darius.

[15] At some point in time in the early morning hours of October 28, 2018, Mr. and Mrs. Salmon left the party and went to McDonald’s restaurant to obtain something to eat. They returned to the house party but rather than continuing to socialize, Mrs. Salmon who was angry and upset, opted to walk home straight away rather than wait for her husband to gather his equipment and load it into their van.

[16] On her walk home, Mrs. Salmon was accompanied by Mr. Budhai. When she arrived just outside her residence, Mrs. Salmon saw a friend and stopped to chat with her while Mr. Budhai made his way into the house. It was while she was chatting to her friend that Mrs. Salmon also noticed Mr. Borden standing in front of another home just down the lane.

[17] Mr. Borden, who had also left the party after having been separated from his girlfriend, had retrieved the gun he had hidden and was looking for Ms. Lillycrop at her mother’s home.

[18] When he learned that Ms. Lillycrop was not there, Mr. Borden walked to the Salmon residence to ask Mrs. Salmon if she had seen his girlfriend and to also ask her if anything else was going on that evening in the form of social activity.

[19] As Mr. Borden approached, Mrs. Salmon was standing in the front door way to her house which faced a parking lot across the lane. Mr. Borden walked up the sidewalk and steps to talk to her. Mr. Budhai was still inside the house along with other family members.

[20] Mrs. Salmon and Mr. Borden were chatting briefly when she saw her husband’s van approaching. She called to Mr. Budhai to let him know.

[21] At this point in time, I wish to pause and indicate that the video evidence I previous referred to is a visual recording obtained from a security system installed in the Salmon home. These recordings provide significant and probative silent, visual evidence of the interaction between Mr. Salmon and Mr. Borden and the events as they transpired over the course of the few minutes following Mr. Salmon’s arrival home.

[22] On the basis of my review of the recordings, in particular the recording on Channel 4 and the other evidence that I accept as credible and reliable, I make the following further findings of fact: (a) At 4:02:20 a.m., the van driven by Mr. Salmon entered the street leading to his home; (b) Mr. Borden turned in the direction of the approaching vehicle; a movement consistent with Mrs. Salmon having noticed her husband’s van as it approached; (c) Mr. Borden remained on the steps of the Salmon home, glancing briefly to his left toward the Lillycrop residence, and watched the Salmon van pull up and stop in front of him; (d) When the rear of the van stopped in front of the Salmon home, Mr. Borden turned and with his back to the van looked at the front door of the Salmon home. He appears to have been wearing a shirt and open jacket. His hands appear to have been in his pockets; (e) Mr. Borden turned back to the van as the driver’s door opened and shrugged his shoulders slightly as then turned to speak to someone in the doorway of the Salmon home; (f) At 4:02:51 a.m., Mr. Salmon got out of his van and moved directly to the rear of his vehicle at which point he opened the rear door. Mr. Borden turned to watch him; (g) The front door of the home moved briefly while Mr. Salmon lifted what appears to be a speaker from the rear of the van and approached his home up the sidewalk. Mr. Borden remained standing where he was and looked at Mr. Salmon as he approached; (h) I accept Mr. Salmon’s evidence that he had seen Mr. Borden on the steps to his home as he drove up in his van, but he did not see his wife in the doorway; (i) I accept Mr. Borden’s evidence that when Mr. Salmon walked toward him carrying the equipment, he asked Mr. Salmon if he needed help carrying the equipment in or holding the door open. The body language of both men indicates to me that a verbal exchange was transpiring at this point in time. (j) Mr. Salmon spoke to Mr. Borden as he arrived at the steps to his home and gestured with his left arm as if pointing at Mr. Borden to leave. I find that he asked Mr. Borden to leave because he did not know Mr. Borden and was not a friend. (k) Mr. Salmon continued his approach to the front door. Mr. Borden turned toward the front door and the two men continued to speak. (l) Mr. Borden stepped out of the way. Mr. Salmon gestured again in a sweeping motion with his left arm as if telling Mr. Borden to leave. He also shook his head ‘no’ and gestured a third time. (m) By this time Mr. Salmon had reached the step to his doorway. (n) At 4:03:09 a.m., with eyes downcast, Mr. Salmon walked past Mr. Borden in order to enter his home. Simultaneously, Mr Borden walked past Mr. Salmon, down the step and away from the front door. (o) At 4:03:13 a.m., Mr. Borden turned and watched Mr. Salmon enter his home. The front door opened and closed. (p) Mr. Borden turned, his hands in his pants pockets and walked away. At one point, he appears to have wiped his face with his left hand as walked across the lane into the parking lot at 4:03:25 a.m. but then replaced his hand in his pocket. (q) At 4:03:30 a.m., Mr. Salmon re-appeared into view, left the house and walked down the sidewalk to the open rear door of his van. In the meantime, Mr. Borden continued walking away from the home and moved further into the parking lot. It is of note that there were no lights on the lot itself. (r) At 4:03.36 a.m., as Mr. Salmon reached into the back of his van, Mr. Borden stopped and turned to his left looking back in the direction of Mr. Salmon and/ or the house. He stood still while Mr. Salmon unloaded another piece of his equipment from the van and carried it in his right hand toward his house. (s) At the edge of the sidewalk, however, Mr. Salmon also stopped, turned to his left and looked back toward the parking lot in the direction of Mr. Borden who had not moved any further away. (t) Mr Salmon completed his turn, and with the equipment still in his hand, reversed his direction away from the house and faced the parking lot. It appeared to me that Mr. Salmon was engaged in a verbal exchange with Mr. Borden. (u) At 4:03:48 a.m., Mr. Salmon placed his equipment on the ground beside him and started walking toward Mr. Borden who was still standing in the parking lot. While walking, Mr. Salmon was gesturing with his right arm in the direction of Mr. Borden. Mr. Salmon took approximately 19 steps toward Mr. Borden before he stopped. (v) In the meantime, Mr. Borden who had not moved except to turn his body, remained where he was as Mr. Salmon approached. (w) During this time, Mr. Budhai had also left the house and was walking past the equipment located on the ground when Mr. Salmon stopped walking toward Mr. Borden. (x) At 4:04:00 a.m., Mr. Budhai or Dwight as he has been referred to, continued walking toward Mr. Salmon who, by this time, had turned away from Mr. Borden and started walking back across the parking lot toward his home. (y) Mr. Borden remained where he was. (z) Dwight and Mr. Salmon met up in the lot at which time, Dwight turned back around, placed his right hand on Mr. Salmon’s left shoulder and walked back with him to the van and the equipment left on the ground. They both then enter the house. (aa) By this time, Mr. Borden had also disappeared from the view of the camera into the parking lot. (bb) At 4:05:07 a.m., however, Mr. Borden reappeared into view in the lot and stood motionless in front of one of the vehicles parked there. Mr. Salmon’s van remained parked in front of the home, its rear door up and open and the interior lights on. (cc) At 4:05:29 a.m., Mr. Salmon left the house and walked toward the back of his vehicle. On reaching it, however, he stopped and looked up and across into the parking lot toward Mr. Borden. On the tape, something or someone appears to have caught his attention. (dd) At 4:05:41 a.m., Mr. Salmon, with both arms hanging down initially by his sides, started moving toward the parking lot and Mr. Borden yet again. He took two steps, raised and extended his right arm in front of him and pointed toward Mr. Borden. He took a further approximately seven steps toward Mr. Borden with arm still raised when Mr. Borden started to move forward in Mr. Salmon’s direction. (ee) They continued to move toward each other with Mr. Salmon taking at least another 5 steps with his arm still raised in front of him in the direction of Mr. Borden. (ff) At 4:05:47 a.m., Mr. Borden stopped moving toward Mr. Salmon but remained facing in his direction. On the other hand, Mr. Salmon continued to approach Mr. Borden. (gg) At 4:05:48 a.m., Mr. Borden while facing Mr. Salmon, spread his feet apart and started to crouch. He bent forward and down toward his right knee area. (hh) Mr. Salmon continued to walk toward him. (ii) At this point in time, Mr. Borden bent over even further to the extent that his head and upper body were blocked from the view of the camera by Mr. Salmon on the main floor camera (Channel 4) but still visible from the upstairs security camera (Channel 3). (jj) Mr. Borden then moved to an erect position, left arm extended and pivoted approximately 90 degrees to his left with his right arm extended toward Mr. Salmon. Mr. Salmon turned his body slightly to the right. (kk) Mr. Borden’s body was positioned at a right angle to Mr. Salmon’s in front of Mr. Salmon. (ll) Mr. Borden then appeared to look over his right shoulder at Mr. Salmon with his left arm still extended in the opposite direction, right arm extended toward Mr. Salmon and legs starting to move him away from Mr. Salmon. (mm) Mr. Borden’s right hand was pointing at Mr. Salmon prior to the commencement of Mr. Borden’s retreat by running. We now know that in that right hand was the gun that Mr. Borden had found and was carrying with him. (nn) Playing the video on slow motion allows to viewer to realize that the gun was not fired simultaneously with its removal from Mr. Borden’s pocket. In the video, after the gun is drawn, Mr. Salmon took 3 to 4 quick paces toward Mr. Borden but these paces were not in a run. (oo) It was after these 3 or 4 steps that Mr. Salmon broke out into a run to follow Mr. Borden who was backing up. (pp) The flash of Mr. Borden’s gun being fired became visible while Mr. Borden was looking back toward Mr. Salmon while retreating and Mr. Salmon had started to run toward him. Mr. Borden then ran off deeper into the darkness of the parking lot and to the right. (qq) Mr. Salmon is then seen walking back through the lot to his home while lifting the left side of his shirt to look at his body.

[23] The hospital records confirm that Mr. Salmon sustained a gun shot wound to the left side of his chest. This is consistent with the slight turn to the right he had made on approach to Mr. Borden as seen on the video. There was no exit wound. Under X-Ray, a metal object consistent with a bullet fragment was seen in the region of the left upper quadrant of Mr. Salmon’s chest along with a fracture of a portion of his left 9th rib. Surgery was required. Mr. Salmon was unable to return to work until the following January with the bullet ultimately being removed from his body the following April.

[24] So these are the facts so far as I find them with respect to what happened.

[25] It is also important to note at this point in time that although there is a lot of detail in this evidence that can be gleaned from the security tape by slowing the speed of replay, the time frame in real time was very short…. Ultimately, only three minutes passed between the first time Mr. Salmon’s van is seen in the road approaching the Salmon residence and the moment that Mr. Salmon is seen walking back to his house from the parking lot with his shirt up, having been shot by Mr. Borden.

[26] There is also other evidence which I accept and find as factual that is relevant to the issues in this case: (a) that Mr. Salmon did not have much alcohol to drink that evening at the party. I accept his assessment that on a scale from 1 to 10, he would have been intoxicated at a level of 2 or 3; (b) that Mr. Borden had quite a lot to drink that night. I accept his assessment that on a scale from 1 to 10, he would have registered at a level of 7 or 8; (c) that Mr. Salmon was concerned about the nature of the relationship between his wife and Mr. Borden; (d) that Mr. Salmon told Mr. Borden to leave the area on at least three distinctive occasions while swearing and yelling at Mr. Borden; (e) that at the conclusion of the second interaction between Mr. Salmon and Mr. Borden, Dwight sought to calm Mr. Salmon down by placing his hand on Mr. Salmon’s shoulder and walking back to the area of the van with him from the parking lot; (f) that at the conclusion of the third interaction, Mr. Borden shot Mr. Salmon while moving away from Mr. Salmon who had broken into a run after the gun had been withdrawn and pointed toward him; (g) that the emotions of both Mr. Salmon and Mr. Borden were high; (h) that Mr. Salmon was unarmed and had not physically touched Mr. Borden in any way prior to being shot; (i) that Mr. Borden was stabbed in the heart in November 2015 which had damaged his lung capacity and had required open heart surgery; that his assailant was unknown to him; (j) that as a result of this trauma, it was hard for Mr. Borden to have his back turned to people out of his fear of being stabbed again; (k) that Mr. Borden had never met Mr. Salmon or Dwight before this particular evening; (l) that Mr. Borden had kept the gun he had retrieved because he had started to become more fearful of his surroundings; (m) that Mr. Borden was trying to find something else to do when he learned that his girlfriend had not gone to her mother’s home after she left the party to look for her keys; (n) that Mr. Salmon spoke to him using a tone of voice and choice of words that were belligerent.

The Law

[27] In this case, with respect to the charge as set out in s. 244 of the Code, the onus is on the Crown to prove beyond a reasonable doubt that Mr. Borden (a) discharged a firearm (b) at Mr. Salmon (c) with intent to endanger Mr. Salmon’s life.

[28] With respect to the count involving s. 268 (1) of the Code, the onus is on the Crown to prove beyond a reasonable doubt that Mr. Borden (a) intentionally (b) applied (or threatened to apply) force to Mr. Salmon (c) thereby wounding him, maiming, disfiguring or endangering Mr. Salmon’s life.

[29] Section 85 (1) (c) of the Code declares that every person commits an offence who uses a firearm whether or not the person causes or means to cause bodily harm as a result of using the firearm, during flight after committing or attempting to commit an indictable offence.

[30] On the other hand, s. 34 of the Code provides that Mr. Borden is not guilty of an offence if he believed on reasonable grounds that force was being used against him or that a threat of force was being made against him AND the shooting of Mr. Salmon was committed for the purpose of defending or protecting himself from that use or threat of force AND the shooting of Mr. Salmon was reasonable in the circumstances. I have not referred to the concept of other person in this respect because it is not relevant to the case before me.

[31] To determine whether the shooting was reasonable, in this case, I would and must consider

• 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,
• Mr. Salmon’s role in the incident,
• whether any party to the incident threatened to use or used a weapon;
• the size, age, gender and physical capabilities of Mr. Salmon and Mr. Borden;
• the nature, duration and history of any relationship Mr. Salmon and Mr. Borden including any prior use of force or threat of force,
• any history of interaction between Mr. Salmon and Mr. Borden
• the nature and proportionality of Mr. Borden’s response to the use or threat of force; and
• whether the shooting was in response to a use or threat of force that Mr. Borden knew was lawful.

[32] The Crown submits that there is no air of reality to the defence of self-defence raised by Mr. Borden.

[33] The air of reality test requires an examination as to "whether there is evidence on the record upon which a properly instructed jury acting reasonably could acquit.

[34] The purpose of this test is to prevent "outlandish defences" being put to the jury that would be "confusing and would invite unreasonable verdicts."

[35] Can the evidence reasonably support this defence?

[36] The purpose of the test is not intended to require an assessment as to whether the defence is likely, unlikely, somewhat likely, or very likely to succeed. The only issue is "whether the record contains a sufficient factual foundation for a properly instructed jury to give effect to the defence".

[37] This is an evidential burden, not a persuasive burden.

[38] There must be "some evidence" upon which "a properly instructed jury acting reasonably could base an acquittal".

[39] In this case, I have considered the "totality of the evidence" and assumed that the defence evidence is all true.

[40] I must agree with the Crown in this case because I find that I am not satisfied that the record contains a sufficient factual foundation for a properly instructed jury to give effect to this defence.

[41] That said, I am also of the view that it is incumbent on me to act with caution and examine the facts in this case in the context of the law of self-defence, in any event, in case I have erred in my finding that the test as to “air of reality” has not been met by the defence.

[42] In my view, this approach is required to ensure that Mr. Borden knows that I have heard him and that he is reassured that he has received a fair trial. A judge-alone trial affords this flexibility.

[43] If there is an air of reality to this defence, the onus is on the Crown to prove beyond a reasonable doubt that it does not apply in the factual circumstances of this case. In other words, the Crown must prove the unavailability of the defence beyond a reasonable doubt.

Analysis

1. Defence of self-defence

[44] If the defence of self-defence has an air of reality, the onus is on the Crown to prove beyond a reasonable doubt that the defence is not available to Mr. Borden.

(a) Did Mr. Borden believe on reasonable grounds that force was being used against him or that a threat of force was being made against him?

[45] This question relates to the reasonable belief element of self-defence and has to do with Mr. Borden’s belief. The question is not whether force was actually being used or threatened against Mr. Borden but rather whether Mr. Borden reasonably believed in that circumstances that force was being used or threatened against him. Mr. Borden may be mistaken in his belief about the use or threatened use of force as long as his mistake was reasonable in the circumstances as he knew or believed them to be.

[46] In looking at the context of what happened, my first observation is that there is little doubt that Mr. Borden had suffered serious emotional as well as physical consequences as a result of the stabbing he was subjected to in 2015, just three years prior to this event. I am also satisfied and find that this event played a significant role in Mr. Borden’s reaction to Mr. Salmon.

[47] I accept the evidence of his personal fear of being assaulted as well-founded based on his personal clearly life-threatening experience. Mr. Borden impressed me as sincere in this regard. This is relevant because, as submitted by counsel for Mr. Borden, in assessing whether Mr. Borden’s subjective belief regarding a threat toward him was objectively reasonable, it is relevant to consider his personal circumstances and history.

[48] On the other hand, due in part to this same deeply personal fear of again being attacked, jumped or stabbed, I also find it difficult to believe that Mr. Borden would intentionally enter into and remain in a neighbourhood that he believed contained “bad people where a lot of bad things had been happening” without the comfort of knowing that at any time he felt it was necessary, he could, would and intended to resort to the use of the loaded firearm he was carrying.

[49] Mr. Borden testified that he felt threatened going into this particular neighbourhood. This response of fear was personal to him based on his prior experience as a victim of violence.

[50] As I have indicated, however, I am satisfied on the basis of all of the evidence before me that Mr. Borden entered and remained in this “threatening” neighbourhood in any event because he knew he had access to a loaded gun if he ran into what he perceived as trouble. It was not just a gun that he could use to threaten violence; he knew it had a round of ammunition that could harm, injure or kill the source of his anxiety, if required. With access to his firearm, his fear dissipated.

[51] Mr. Borden was told by Mr. Salmon, one of the residents of the very neighbourhood he was apparently afraid to enter, to leave – on at least three occasions. These were not polite requests either. Mr. Salmon was arrogant and aggressive in his demeanour and tone, but Mr. Borden chose to oppose the direction from Mr. Salmon and to physically remain in the vicinity of Mr. Salmon’s home.

[52] It is reasonable to infer that this bravado was based on his possession of a loaded weapon ready and intended to be used, if required.

[53] In these circumstances, to ask the Court to find that Mr. Borden continued to be very afraid of the outcome of his non-verbal defiance toward Mr. Salmon defies common sense.

[54] He had never met Mr. Salmon before so for all he knew, Mr. Salmon could have been one of those “bad people” he referred to.

[55] Rather than leave the immediate vicinity of Mr. Salmon’s home, Mr. Borden chose to stay in the area. Certainly this is nothing illegal or untoward on Mr. Borden’s behalf but this conduct undermines as reasonable or rational, Mr. Borden’s explanation that he did not move further away from the parking lot because he did not feel safe going elsewhere and was frightened of the neighbourhood. There was a lit street; his girlfriend’s mother lived just a few doors down.

[56] In my view, Mr. Borden had entered and remained in this perceived unsafe neighbourhood partying because he had access to a gun for protection and intended to use it, if required, to either threaten or shoot; he could have left the gun hidden after he left the party but he chose to retrieve it; he then walked on his own in the dark in this neighbourhood to find his girlfriend while carrying the gun with him; he stayed in the parking lot notwithstanding the rantings of Mr. Salmon, with the gun in his pocket all the while knowing that it was ready to be used and could inflict injury or harm or death, if used.

[57] Even then, Mr. Borden could have left the area when asked to do so and called a cab or taken other steps as he had planned to do while in the process of leaving knowing he had a firearm in case of trouble elsewhere, but he chose not to do so.

[58] Instead, notwithstanding other options available to him, Mr. Borden stood in the parking lot apparently trying to figure out what to do for the rest of his night; strolling through contacts on his phone. In my view, these are not the actions of a man who is so afraid of his surroundings.

[59] Mr. Borden testified that during the last encounter, Mr. Salmon walked toward him with his right hand up. Mr. Salmon asked him what he was doing. Mr. Borden did not hear him and said “Pardon me”. Mr. Salmon continued walking toward him and appeared angry. Mr. Borden moved toward Mr. Salmon so he could hear and understand what Mr. Salmon who had a strong Jamaican accent, was saying.

[60] On the tape, Mr. Borden’s movements toward Mr. Salmon appear fluid and confident. He moved quickly toward Mr. Salmon.

[61] Mr. Borden testified that when he saw Mr. Salmon start to run toward him, he thought he was going to be attacked. It was at this time that he drew out the gun and fired.

[62] The difficulty I have with this evidence is that Mr. Salmon did not start to run toward Mr. Borden until after Mr. Borden had stopped, bent forward and reached down toward his right knee area and removed the gun from where it was located. On the video, the gun appears to have already been out and pointing at Mr. Salmon when Mr. Salmon started to run toward him.

[63] In applying the analysis required with respect to s. 34, I find that the evidence is not clear as to what was actually said by Mr. Salmon to Mr. Borden from the time they first encountered each other until the moment Mr. Borden ran off. But there is no probative evidence before me that Mr. Salmon verbally threatened to apply or use force on or against Mr. Borden before Mr. Borden retrieved the gun from his pocket. Indeed, it is Mr. Borden’s evidence that he had moved toward Mr. Salmon because he did not hear and/or could not understand what Mr. Salmon was saying.

[64] Further, there is no evidence before me that Mr. Salmon had actually used force against Mr. Borden at any time during their encounter.

[65] Unlike the situation in R. v. Schell, 2000 ONCA 16917, 136 OAC 163, Mr. Salmon had not been involved in any criminal activity of the ilk suffered by Mr. Borden previously and had had no prior dealing with him whatsoever.

[66] In my view, a reasonable person who is sane and sober, not exceptionally excitable, aggressive or fearful, a person who has the same powers of self-control that we expect our fellow citizens to exercise in society today would not have held a similar belief that force was being used or threatened against him.

[67] For these reasons, I find that Mr. Borden may have believed that force was being used against him or that a threat of force was being made against him but that the grounds on which this belief was based were not reasonable.

[68] But if I have erred in this respect, and Mr. Borden’s belief was reasonable in the circumstances, it is important to consider the second element.

(b) Was the shooting of Mr. Salmon was committed by Mr. Borden for the purpose of defending or protecting himself from that use or threat of force?

[69] It may well be that from Mr. Borden’s perspective, the shooting of Mr. Salmon was committed for the purpose of defending or protecting himself from a use or threat of force by Mr. Salmon but as, I have indicated there is no probative evidence before me of any use or threat of force by Mr. Salmon.

[70] I further find in any event that it was not until Mr. Borden pointed the gun at Mr. Salmon, a threatening act in and of itself by Mr. Borden toward Mr. Salmon that Mr. Salmon started to run toward him, the act that Mr. Borden apparently perceived as threatening and the catalyst that caused him to fire the gun.

[71] For this reason, it is necessary to move on to an analysis of the third criterion:

(c) Was the shooting of Mr. Salmon reasonable in the circumstances?

[72] Even if I were wrong with respect to the first two branches of this defence, I find that, in any event, the action taken by Mr. Borden in shooting Mr. Salmon was not reasonable in the circumstances.

[73] There is no probative evidence of the nature of the force or threat from Mr. Salmon before the gun was drawn and fired other than his swearing and yelling while demanding that Mr. Borden leave the area and his run toward Mr. Borden when the gun was exposed and pointed at him.

[74] There were other means available to Mr. Borden to respond to the potential use of force if there was one and that would have been to do as demanded and leave the area quietly, quickly and peacefully especially if he was so afraid of the neighbourhood.

[75] Mr. Salmon was aggressive and belligerent in his demeanour but at no point did he touch Mr. Borden or threaten to touch him (at least based on the evidence before me).

[76] As I have indicated, I am further not satisfied that a use of force was imminent by Mr. Salmon until after Mr. Borden had withdrawn the gun from his pocket at which point in time, Mr. Salmon started running toward him in the face of a threat of injury or harm from Mr. Borden.

[77] There is no evidence before me that Mr. Salmon had threatened to use or in fact had used a weapon toward Mr. Borden.

[78] Justice Doherty has indicated in his writing that the concept of reasonableness connotes a community standard against which the actions of individuals within the community can be measured…this standard ensure that the self-defence justification will not extend to killings (for which I substitute the words “armed violence”) committed in circumstances that the community regards as unreasonable and beyond the pale of any acceptable justification.

[79] While I am satisfied that Mr. Borden would have had some difficulty defending himself physically due to the differences in their sizes and health, should he and Mr. Salmon have engaged in a physical altercation, I am entirely satisfied beyond a reasonable doubt that Mr. Borden’s response by shooting Mr. Salmon was unreasonable in the circumstances.

[80] As I have indicated, there was no evidence of any previous interaction between Mr. Salmon and Mr. Borden which in conjunction with all of the other evidence leads me to the conclusion that the nature and proportionality of Mr. Borden’s response to Mr. Salmon was unwarranted and entirely out of proportion to the circumstances. The force used by Mr. Borden to repel the advance of Mr. Salmon was excessive and recklessly applied in these circumstances. Shooting Mr. Salmon was not really necessary for Mr. Borden to preserve his life or avoid serious bodily harm.

[81] Therefore, for all of these reasons, as much I sympathize with the trauma endured by Mr. Borden and the emotional response and stress triggers, he now apparently experiences in the result, I find that his action toward Mr. Salmon was unreasonable in all of the circumstances and beyond the pale of any acceptable justification.

[82] For all of the reasons, the Crown has proved beyond a reasonable doubt that the defence of self-defence is not available in the circumstances. In other words, the Crown has proved beyond a reasonable doubt that Mr. Borden was not acting in lawful self-defence when he shot Mr. Salmon.

2. Defence of accident

[83] Mr. Borden also indicated to the court in his testimony and his submissions that the shooting was accidental. In other words, he did not intend to actually shoot Mr. Salmon. Mr. Borden did not have to prove that what he did was accidental. The onus remained on the Crown to prove that the shooting was not an accident.

[84] He testified that he wanted to scare Mr. Salmon with the gun and that he did not mean for the gun to discharge. Mr. Borden described how his hand was on the side of the gun. The trigger was exposed and the side of his hand hit the trigger when it was raised and it went off. He stated that he did not pull the trigger with his finger; he did not have to put his finger in or on the trigger; he did not expect it to go off.

[85] The visual evidence clearly shows Mr. Borden reaching for his gun and pointing it at Mr. Salmon. He had handled and examined this gun previously. He confirmed that there was a gun in the chamber. On his way to the Lillycrop residence he had moved the gun from the waistband of his pants to his pocket. He had walked with the gun in his pocket. None of these movements had triggered the gun to fire. I therefore have difficulty believing in this context that the trigger was as loose, sensitive and light to the touch as Mr. Borden claimed. Even if it were, given Mr. Borden’s prior handling of the gun, he either was or ought to have been aware of its nature in this regard and intentionally used it in this condition.

[86] I therefore find that the evidence that this shooting was accidental was neither credible nor reliable and I must decline to accept the submission in this regard or acquit Mr. Borden on this basis.

Conclusion

[87] On all of the evidence before me and the findings of facts set out above in the context of both my review of the evidence and my analysis with respect to the defences advanced by Mr. Borden in response to which the Crown bore the burden of proof, I find that the Crown has met its burden on the three counts before the Court.

[88] I am satisfied beyond a reasonable doubt that on the evening in question, Mr. Borden intentionally carried a loaded weapon with him to compensate for any fear he may experience arising from his prior history; that Mr. Borden intended to use this weapon if and when required from his perspective; that this combination of knowledge and intention compensated for any fear that Mr. Borden testified he had at the relevant time; that in being approached in a manner he did not appreciate, Mr. Borden removed the gun from his pocket and pointed it at Mr. Salmon; and that Mr. Borden thereafter intentionally applied force to Mr. Salmon by shooting him and wounding him.

[89] Mr. Borden thereby committed aggravated assault contrary to s. 268 (2) of the Code.

[90] For these reasons, Mr. Borden is also guilty of the charge contrary to s. 85(c).

[91] And, for all of these reasons, I am further satisfied beyond a reasonable doubt that Mr. Borden discharged the firearm in his possession with the intent of endangering the life of Darius Salmon contrary to s. 244 (2) of the Code.

“Justice L. Templeton” Justice L.C. Templeton

Released: May 21, 2020 (Orally)

COURT FILE NO.: 228-19 DATE: 20200521 (ORALLY) ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – Jason Richard Borden Defendant REASONS FOR decision Templeton J.

Released: May 21, 2020