REASONS FOR JUDGMENT

BRIEF OVERVIEW

[1] This is a case involving a tumultuous relationship between a man and woman who had an on and off relationship before the incident giving rise to the charges before the court. They have both been previously charged with assaulting each other. At the time the current charges arose, they were both subject to no contact recognizances. The complainant, Jacqueline Robinson was in breach for attending a function where Mr. Winter was present. Mr. Winter is alleged to have breached his undertaking to keep the peace.

[2] Jeffrey Winter, age 33 at the time of the incident, is charged with aggravated assault, threatening death, mischief under $5,000.00 and breach of recognizance to keep the peace.

[3] On August 3, 2018, Mr. Winter’s family had a barbecue at his aunt’s home. His girlfriend, Jacqueline Robinson, age 25 at the time, was invited to the gathering where several of Mr. Winter’s relatives were present.

[4] Mr. Winter raises the defence of self-defence. The evidence of two of Mr. Winter’s uncles, who testified at the trial, supports Mr. Winter’s testimony that he punched Ms. Robinson in the face to protect himself from being stabbed by scissors Ms. Robinson had in her hand.

[5] There is no issue that Mr. Winter assaulted Ms. Robinson breaking her jaw. No issue that he punched her once. The question is whether self-defence is a reasonable explanation for his action.

THE WITNESSES’ EVIDENCE

Background to the Incident

[6] The Crown called Ms. Robinson and Mr. Winter’s uncles, Jaikison Dhanraj and Darren Ramlal. Mr. Winter testified on his own behalf.

[7] There were children and elderly people at the gathering who remained upstairs. The younger adults spent most of their time in the basement which was Mr. Dhanraj’s bedroom. All of the witnesses testified that Mr. Winter and Ms. Robinson argued with each other throughout the evening into early the next morning. They all agree that they bickered about Mr. Winter’s past relationships and his cheating on her with his ex-girlfriend.

[8] Ms. Robinson’s evidence was that everyone was drinking beer, liquor and doing cocaine and marijuana throughout the evening into the early morning hours of August 4th. Mr. Dhanraj’s evidence accords with that. Their evidence is that everyone was pretty much “wasted.” Mr. Ramlal and Mr. Winter each testified they only had a couple of drinks and consumed no drugs.

[9] Ms. Robinson’s evidence, and that of Mr. Winter’s and his two uncles diverge in some important ways.

[10] Ms. Robinson claims Mr. Winter was the aggressor and Mr. Winter and his uncles claim she was the aggressor during the arguments. All witnesses testified that throughout the evening several times Ms. Robinson and Mr. Winter would argue, then stop arguing, move away from each other and then start up again. Ms. Robinson said they were both drunk during the arguments. Mr. Winter and his uncles testified Mr. Winter tried to avoid confrontation. However, Ms. Robinson admitted when Mr. Winter pushed her on her chest, she would push him back.

[11] Ms. Robinson described a situation that happened in the basement. There are two beds across from each other in the basement with a coffee table between them. Ms. Robinson and Mr. Winter and Laura, Mr. Dhanraj’s girlfriend, were sitting on one bed and Mr. Dhanraj and Mr. Ramlal were on the other. Ms. Robinson testified Mr. Winter began holding her down on the bed and slapping her on the face. She said she pushed him to try to get up and kept hitting him on his face and shoulders. She said they were fighting “like cats and dogs.” Ms. Robinson testified she eventually was able to get up and leave the basement. The other witnesses did not speak about such an incident.

[12] The arguments started around 11:30 p.m. according to Ms. Robinson. Arguments broke out in the basement around 3:00 a.m. According to Ms. Robinson and Mr. Dhanraj, everyone was drunk and high by this time. Ms. Robinson testified she and Mr. Winter began arguing about who should leave the home and Mr. Winter, according to Ms. Robinson, said it was his family’s home and Ms. Robinson should leave.

[13] Ms. Robinson said the arguments got very heated. She admitted they both got physical with each other. She admitted to getting aggressive with Mr. Winter. She said Mr. Winter was uttering death threats saying he was going to kill her. Mr. Winter then left the basement very angry and, on Ms. Robinson’s evidence, Mr. Ramlal went after him to calm him down. Ms. Robinson said she remained in the basement at that point.

The Incident

[14] The important departure between Ms. Robinson’s evidence and the other three witnesses’ is what occurred when Mr. Winter returned to the basement.

[15] Ms. Robinson said she got scared when she saw him at the door of the basement. She wanted to warn him to back off. She said she grabbed an object she thought might have been a wrench in her hand to warn him to get away from her. Then she said she was not sure what she had in her hand. But she knew it was not a sharp object. She said, “I wasn’t trying to kill him. I’m not like that.” She testified that Mr. Winter said, “All I need is one good punch”. She testified Mr. Winter was approaching her when she grabbed the “tool”.

[16] Ms. Robinson admitted to moving towards Mr. Winter. She described it to be like “two lions standing their ground.” She said she did not have a chance to say anything to him because he “clocked her” mid-sentence. What she meant is that Mr. Winter punched her in the face. He punched her once which broke her right jaw. She did not recall whether she fell to the floor.

[17] The other witnesses testified that throughout the evening leading up to the punch, Ms. Robinson was the aggressor; that she was striking and punching Mr. Winter on his body and face and Mr. Winter would not respond correspondingly. He would back away and try to move away from her. Mr. Winter said he moved outside or to another room on three occasions. This is what Mr. Winter says was the backdrop to the incident that gave rise to his punch.

[18] Mr. Dhanraj and Mr. Ramlal were both in the basement sitting on the beds when Mr. Winter entered the basement again. They described Ms. Robinson as getting very agitated when she saw Mr. Winter re-entering the basement.

[19] Mr. Dhanraj testified he keeps scissors on the coffee table for his friends who smoke marijuana to cut it up to prepare it to smoke. He and Mr. Ramlal testified Ms. Robinson did not pick up a tool. They saw her pick up the scissors when she saw Mr. Winter enter the basement. The scissors were about ten inches long from the end of the handle to the tip of the blades, the blade being about seven inches long.

[20] I believe Ms. Robinson picked up the scissors and, in the dimensions described by Mr. Dhanraj and Mr. Ramlal, the scissors were large.

[21] Mr. Winter and his uncles testified that after she picked up the scissors she quickly lunged as she moved toward Mr. Winter. Mr. Ramlal’s view was obstructed by a basement support beam. So, he did not see Mr. Winter punch Ms. Robinson. But he saw her fall to the floor. Mr. Dhanraj witnessed the punch. But his view was obstructed by the support beam. So, he did not see whether Mr. Winter advanced toward Ms. Robinson.

[22] Mr. Winter said that he saw Ms. Robinson holding the scissors at her shoulder level pointed toward his neck as she moved toward him. Mr. Winter was about 5 ft. 6 in. and 130 lbs. and Ms. Robinson 5 ft. 2 in. and 150 lbs. at the time.

[23] Mr. Winter said he had had a few drinks, was intoxicated but not drunk at the time. He denied threatening to kill her. He said he does not remember saying, “All I need is one good punch”. He admitted it was a forceful punch but that he was not thinking about that. He was thinking about protecting himself. Mr. Winter said he did not just push her away because she had a pair of scissors, he said, pointed at his neck level as she approached him.

[24] I accept Mr. Winter’s, Mr. Dhanraj’s and Mr. Ramlal’s evidence about Mr. Winter’s and Ms. Robinson’s physical interactions that evening. That Ms. Robinson was the aggressor and Mr. Winter attempted to retreat during the evening. I considered that Ms. Robinson did not deny she was physically involved in the altercations.

[25] I considered Mr. Winter’s familial relationship with his uncles in arriving at my conclusions on their interactions throughout the night and on the circumstances of Mr. Winter punching Ms. Robinson. I did not see any evidence of partiality toward Mr. Winter because of this. They testified consistently and forthrightly about their observations.

[26] By her own admission, Ms. Robinson was very intoxicated by alcohol, marijuana and cocaine. Both Mr. Dhanraj and Mr. Ramlal added that she picked up a bottle of vodka just before the punch by Mr. Winter and drank straight from the bottle. Ms. Robinson admitted to having memory lapses as to some of what happened that evening. I found Mr. Winter’s uncles’ testimonies more reliable than that of Ms. Robinson and consistent with each other and with Mr. Winter.

[27] I believe Ms. Robinson lunged toward Mr. Winter with the scissors pointed at him just before he punched her breaking her jaw.

[28] Ms. Robinson waited outside the house with Mr. Dhanraj for the ambulance. The ambulance took her to the hospital.

The Injury

[29] Ms. Robinson’s jaw was broken as a result of the punch. Her jaw had to be wired shut with ten screws. Two metal plates were inserted in front of her front bottom teeth. Ms. Robinson testified she underwent a four-hour surgery and spent two days in the hospital. She recovered at home for two months. She was prescribed pain killers.

MISCHIEF UNDER $5,000.00

[30] The mischief under $5,000.00 charge arises in relation to a $20.00 bill that was burned on the evening of Mr. Winter’s family get together.

[31] Ms. Robinson testified that she heard Mr. Winter say something about tearing up a $20.00 bill of hers and burning it. She said it was her money and that she thought it had been on a table. She said she does not recall whether he said anything about the money.

[32] Mr. Winter’s evidence about the $20.00 bill is quite different from Ms. Robinson’s. He testified that Ms. Robinson was arguing about money with someone other than him. She was asking for $20.00. He thought she needed money for a taxi. So, he took $20.00 from his wallet and threw it on the table. It was his $20.00 on his evidence. He did this to stop the argument. He said if he burned the money, he would have known it and contended he would not burn his own money.

[33] Mr. Winter’s evidence on this charge simply makes more common sense. I believe it was his $20.00 bill. And I accept that it is reasonable that he would not burn money he offered Ms. Robinson for taxi fare.

[34] I find beyond a reasonable doubt Mr. Winter not guilty of mischief under $5,000.00.

UTTER DEATH THREAT

[35] Ms. Robinson testified that during their arguments, Mr. Winter threatened to kill her and said that all he needed was one good punch. Mr. Winter denies this. Ms. Robinson’s evidence was not specific as to when during the evening these statements were supposed to have occurred. There is no evidence from the other witnesses about Mr. Winter threatening her. The tone of their evidence is that Mr. Winter would retreat and be non-confrontational. Again, I accept Mr. Winter’s and his uncles’ evidence as more reliable. Ms. Robinson was heavily intoxicated and admitted to memory gaps.

[36] I find beyond a reasonable doubt that Mr. Winter did not threaten to kill Ms. Robinson.

THE LAW ON AGGRAVATED ASSAULT

[37] Section 268(2) of the Criminal Code provides everyone commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant. Under s. 265 of the Criminal Code a person commits an assault when that person without the consent of another person applies force intentionally to that other person, directly or indirectly.

[38] There is no question that Mr. Winter intentionally applied force to Ms. Robinson. His evidence is that he was trying to protect himself from being stabbed by the scissors. There is no dispute that Ms. Robinson was seriously wounded and that force was applied by Mr. Winter’s fist. She sustained a broken jaw that required surgery and a period of hospitalization. There is no dispute that Ms. Robinson did not consent to the assault.

[39] I find beyond a reasonable doubt that Mr. Winter committed an aggravated assault on Ms. Robinson. The question is whether he can succeed with the defence of self-defence.

THE LAW ON SELF-DEFENCE

[40] The statutory requirements for self-defence are found at s. 34 of Criminal Code. It is not the burden of the defence to prove Mr. Winter meets those requirements. It is the Crown’s burden to disprove beyond a reasonable doubt that Mr. Winter acted in self-defence: [R. v. Mulder , 1978 CanLII 2496 (ON CA), [1978] O.J. No. 515 (Ont. C.A.), at paras. [5 and 9]](https://www.canlii.org/en/on/onca/doc/1978/1978canlii2496/1978canlii2496.html). Section 34 provides:

34 (1) 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 that use or threat of force; and

(2) 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;

(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.

[41] Each of the factors under s. 34(2) need not be established: [R. v. Randhawa, 2020 ONCA 668 (Ont. C.A.), at para. 18]. The enumerated factors are simply examples of matters to consider.

[42] The Ontario Court of Appeal considered the application of the reasonableness factor to the facts of self-defence and held that reasonableness should not be assessed “from the perspective of the hypothetically neutral reasonable man, divorced from the appellant's personal circumstances”. The court held that the surrounding context ought to be considered looking at “the accused's personal characteristics and experiences to the extent that those characteristics and experiences were relevant to the accused’s belief or actions.”: [R. v. Khill, 2020 ONCA 151 (Ont. C.A.), at para. 48].

[43] The proportionality of the force to the threat and the imminence of the threat are factors to consider. R. v. Khill cautioned that “under s. 34(2), the nature of the force used is but one factor in assessing the reasonableness of the act. The weight to be assigned to any given factor is left in the hands of the trier of fact: [R. v. Khill, at para. 62]

APPLICATION OF THE FACTORS

Was There Reasonable Grounds to Believe Force is Being Used?

[44] The context in this case is important to assessing the reasonableness of Mr. Winter’s subjective belief.

[45] Both Ms. Robinson and Mr. Winter had been charged on various occasions with assaulting each other. In 2017 Mr. Winter entered into a recognizance to keep the peace. As noted earlier, his current breach of recognizance charge stems from breach of that recognizance with the assault on Ms. Robinson. Ms. Robinson also had previously been charged twice with assault on Mr. Winter. The evidence is not clear. But it appears that the first charges might have been dropped and that she expected the second charges to be dropped if she completed a partner assault program.

[46] As noted earlier, it was the evidence of all witnesses, including Ms. Robinson, that she and Mr. Winter bickered throughout the night of the family get together right up to just before she was punched in the face. Ms. Robinson admits to punching and hitting Mr. Winter while he was punching and hitting her. However, Mr. Winter’s and the other witnesses’ evidence was that Mr. Winter was trying to avoid confrontation, that he walked away from Ms. Robinson on each occasion when the arguments broke out.

[47] The evidence is that Ms. Robinson was acting aggressively and angrily before she picked up the scissors. The added factor is that everyone including Ms. Robinson acknowledged that she was heavily intoxicated when she confronted Mr. Winter before she was punched. This presents an added fear factor for the prospect of force being used against Mr. Winter with the scissors.

[48] It would be reasonable for Mr. Winter to believe force was being applied by Ms. Robinson when she angrily moved toward him pointing a large pair of scissors at him.

Was the Punch by Mr. Winter Done for the Purpose of Defending Himself?

[49] I believe the facts clearly show that Mr. Winter punched Ms. Robinson for the purpose of defending himself. As noted, after an evening of physical encounters inspired by Ms. Robinson and seeing a very intoxicated Ms. Robinson lunge toward him with a large pair of scissors, the unfortunate fact is that he punched her in the face to stop her from attacking him with the scissors. I find Mr. Winter’s subjective belief of danger was reasonable. His quick decision to punch Ms. Robinson was for the purpose of defending himself.

Was the Punch Reasonable in the Circumstances?

[50] My findings on the other factors make it clear that I find it was reasonable for Mr. Winter to believe he would be attacked by the scissors and that the punch done made for the purpose of defending himself. I find he reasonably felt he was in imminent danger. The question is whether the punch was reasonable in the circumstances.

[51] Mr. Winter saw Ms. Robinson in an angry and intoxicated state lunge toward him with scissors trained at the level of his neck. His subjective belief that he was in imminent danger I find, was well-founded. I find reasonable his answer to the question as to why he did not just push her away. He wanted to make sure he protected himself. I accept that he had to think fast and act quickly to avoid the scissors. It is an error in law to impose a standard of perfection on the defence’s conduct: [R. v. Cunha, 2016 ONCA 24, 2016 ONCA, at para. 24, (Ont. C.A.)]

[52] It makes common sense that to push Ms. Robinson would mean moving closer to her and the scissors. Also given the fact that Mr. Winter is of a rather diminutive stature and Ms. Robinson, considerably heavier than him, he might not have succeeded in pushing her away, opening himself up to the risk of being stabbed.

[53] I find the punch was reasonable in the circumstances. I find beyond a reasonable doubt that the Crown did not succeed in disproving the defence of self-defence. I find Mr. Winter not guilty of aggravated assault.

Breach of Recognizance

[54] A finding of not guilty of aggravated assault, threatening death and mischief under $5,000.00 requires a finding of not guilty of breach of recognizance.

VERDICT

[55] I find Jeffrey Winter not guilty of aggravated assault, threatening death, mischief under $5,000.00 and breach of recognizance and acquittals will be registered accordingly.

Allen J.

Released: December 10, 2021

COURT FILE NO.: CR-19-50000273-0000

DATE: 20211210

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

JEFFREY WINTER

Accused

REASONS FOR JUDGMENT

Allen J.

Released: December 10, 2021

R. v. Winter, 2021 ONSC 8147

Case Summary

REASONS FOR JUDGMENT

BRIEF OVERVIEW

THE WITNESSES’ EVIDENCE

Background to the Incident

The Incident

The Injury

MISCHIEF UNDER $5,000.00

UTTER DEATH THREAT

THE LAW ON AGGRAVATED ASSAULT

THE LAW ON SELF-DEFENCE

APPLICATION OF THE FACTORS

Was There Reasonable Grounds to Believe Force is Being Used?

Was the Punch by Mr. Winter Done for the Purpose of Defending Himself?

Was the Punch Reasonable in the Circumstances?

Breach of Recognizance

VERDICT

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 3

Legal Tests 1

Legislation 2