Court File and Parties

COURT FILE NO.: CR 274-22 DATE: 2023-04-25 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Her Majesty the Queen AND Connor Doerr, Defendant

BEFORE: Justice Spencer Nicholson

COUNSEL: R. Dietrich, for the Crown E. Seaman, for the Defendant

HEARD: February 14 and 15, 2023

Reasons

NICHOLSON J. (ORALLY):

1On November 24, 2019, two men separately went to Jack’s Bar in London Ontario with their friends where they consumed alcohol and engaged in activities that one would normally expect to occur at such an establishment. The evening ended with both men facing life changing consequences from the physical altercation that ensued between them.

2Tyler Gerliep is now 29 years of age. He was undoubtedly intoxicated on the evening in question. He left Jack’s Bar via ambulance to University Hospital. He had bleeding about his brain requiring surgery and has ongoing impairment of his cognitive functioning.

3Connor Doerr, the accused, is now only 23 years old. His involvement in the altercation has resulted in a single count indictment accusing him of aggravated assault in respect of Mr. Gerliep contrary to s. 268(2) of the Criminal Code of Canada.

4There are three issues for determination. The first is whether the Crown has proven that Mr. Doerr assaulted Mr. Gerliep. Secondly, Mr. Doerr raises self-defence in answer to the charge. Thirdly, Mr. Doerr raises causation for Mr. Gerliep’s injuries as a defence to the charge.

5The court heard the testimony of the investigating police officers, Rebecca McCulloch and Robert Sundstrum. The Crown also presented the evidence of Kitana Siy, one of Mr. Doerr’s companions that night. Mr. Gerliep testified, as did Mr. Doerr in his own defence.

6There is an Agreed Statement of Facts in which Mr. Gerliep’s medical treatment following the altercation is acknowledged.

7The key piece of evidence in this case is the roughly 50 seconds of surveillance video taken from the dance floor that captured the altercation. There was also footage taken from the two cameras located out front of Jack’s, which provides circumstantial evidence.

Background

8Jack’s Bar is located on Richmond Street in London, Ontario. The front of the bar has cameras pointing north and south on Richmond Street. There was also a camera located inside near the dance floor.

9Tyler Gerliep went to Jack’s that night with his friend, Raymond, and some others. According to Mr. Gerliep, they arrived at approximately 11:00 pm. They had been drinking alcohol before their arrival, although Mr. Gerliep could not say how much he consumed. He could not remember if they drank at the bar, and if so, how much.

10Kitana Siy is the older sister of one of Mr. Doerr’s high school friends, Christian. A group of friends consisting of Christian Siy, Mr. Doerr, Brandon Hewitt and Zachary McLelland went to Jack’s arriving at approximately 10:00 pm according to Ms. Siy. Ms. Siy was able to identify her brother and his friends in the camera footage from out front of the bar.

11The evidence establishes that Mr. Doerr and his friends had consumed alcohol before arriving at Jack’s too. Mr. Doerr testified that he consumed 3-4 shots of whiskey at home and then a further 3-4 shots of Jägermeister at the bar.

12I will describe the video footage of the fight in significant detail later. The entire encounter between the men was approximately 10 seconds in duration. The fight started at 2:07 am. The footage shows Mr. Gerliep and Mr. Doerr exchanging words and gestures. Mr. Doerr’s friends are behind him. Then the matter quickly escalates.

13In the course of the fight, at least some of the participants go to the ground. Mr. Gerliep is on the ground. While he is on the ground, some of the participants, including Mr. Doerr, appear to make contact with him. Mr. Gerliep gets up and appears to want to continue the altercation, although he is staggering around, but the bouncers take him away from the scene.

14Mr. Doerr and his friends all got kicked out of the bar following the altercation. They went out front and clearly spent some time discussing the fight. Later, Mr. Doerr departs northbound. This is all captured on video.

15The police investigated, given Mr. Gerliep’s injuries. They obtained the video from the various cameras. Officer McCulloch spoke to Mr. Gerliep on several occasions over several months. Mr. Gerliep was unable to remember what had occurred.

16Mr. Doerr was contacted by Constable Sundstrum on November 30, 2019. Mr. Doerr at that time was a “person of interest”. They spoke outside Mr. Doerr’s home. Mr. Doerr was wearing a Cleveland Indians hat during that conversation, which is the same as the person shown in the video of the fight was wearing. Mr. Doerr indicated that he was not willing to provide a statement but did indicate something to the effect of “there’s video, you can see he attacked me first”.

17Mr. Doerr was arrested on February 3, 2020.

[18] Through the Agreed Statement of Facts, it is agreed that Mr. Gerliep’s injuries included:

• Severe swelling to his right eye and face;
• An abrasion to the rear of the head (occipital area);
• An occipital and suboccipital right-sided epidural hematoma.

19It was also agreed that Mr. Gerliep presented at hospital as being extremely intoxicated. Bloodwork showed an ethanol level of 45.9 mmol/l (millimoles per litre) (conversion is 211.5 mg/100 mL).

20Mr. Gerliep required emergency surgery immediately after being admitted to hospital. The surgery is called a posterior fossa decompression. It is agreed that the surgery was necessary because if his injury was left untreated it could have resulted in Mr. Gerliep’s death.

Applicable Legal Principles

21S. 268(2) of the Criminal Code provides that every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant. The necessary mens rea of the offence is objective foresight of bodily harm (see: R. v. Godin, [1994] 2 SCR 484, at p. 485). There does not have to be proof of an intent to maim, wound, disfigure or endanger the life of the complainant (R. v. Leclerc, 67 CCC (3rd) 563).

[22] For aggravated assault, the onus is on the Crown to prove beyond a reasonable doubt the following: (i) That the accused intentionally applied force to the complainant; (ii) That the complainant did not consent to the force the accused intentionally applied; (iii) That the accused knew that the complainant did not consent to the force being applied; (iv) That the force applied wounded, maimed, disfigured or endangered the complainant’s life; and (v) That a reasonable person, in the circumstances, would realize that the force applied would put the complainant at risk of suffering some kind of bodily harm, although not necessarily serious bodily harm or the precise kind of harm that the complainant suffered.

23Assault causing bodily harm and assault simpliciter are both included offences of aggravated assault (see: R. v. Rocchetta, 2016 ONCA 577).

[24] Self-defence is codified in the Criminal Code in s. 34. Subsection 34(1) provides that 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 (c) The act committed is reasonable in the circumstances.

[25] Subsection 34(2) sets out a non-exhaustive list of factors to be considered in determining whether the act committed is reasonable in the circumstances. Those enumerated factors include: (a) the nature of the force or threat; (b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force; (c) the person’s role in the incident; (d) Whether any party to the incident used or threatened to use a weapon; (e) The size, age, gender and physical capabilities of the parties to the incident; (f) The nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat; (f.1) any history of interaction or communication between the parties to the incident; (g) the nature and proportionality of the person’s response to the use or threat of force; and (h) whether the act committed was in response to a use or threat of force that the person knew was lawful.

26Thus, in addressing s. 34(2), the court is specifically required to consider the relevant circumstances of the person (Mr. Doerr), the other parties and the act.

27The leading case on self-defence is R. v. Khill, 2021 SCC 37. In Khill, the Supreme Court of Canada described that s. 34 of the Code provides a three-part structure. The first inquiry, termed the “catalyst”, requires an examination of whether the accused reasonably believed that force or a threat of force was being used against them. The second aspect, “the motive”, requires that the subjective purpose for responding to the threat must be to protect oneself. Finally, the third part of the inquiry, “the response” involves an examination of whether the accused’s actions were reasonable in the circumstances.

28In Khill, the focus was on the “response”, or third part of the analysis. The law of self-defence is grounded in the conduct expected of a reasonable person in the circumstances. The list of factors in s. 34(2) is provided to assist the trier of fact in determining whether the conduct was reasonable in the circumstances. No single factor is necessarily determinative of the outcome.

[29] The Ontario Court of Appeal also addressed self-defence in R. v. Bengy, 2015 ONCA 397. Hourigan J.A. described, at para. 28, the three basic requirements of self-defence as being: (i) Reasonable belief—the accused must reasonably believe that force or threat of force is being used against him or someone else; (ii) Defensive purpose—the subjective purpose for responding to the threat must be to protect oneself or others; and (iii) Reasonable response—the act committed must be objectively reasonable in the circumstances.

[30] In this case, as Mr. Doerr testified, the court must apply the principles from R. v. W.(D.), [1991] 1 S.C.R. 742. In the context of self-defence, the application of W.(D.) was explained in Bengy, and in R. v. Reid (2003), 65 O.R. (3d) 723 (C.A.). I must instruct myself as follows:

1. If I accept Mr. Doerr’s evidence and on the basis of it, I believe or have a reasonable doubt that he was acting in lawful self-defence, I must find Mr. Doerr not guilty.
2. Even if I do not accept Mr. Doerr’s evidence, if, after considering it alone or in conjunction with the other evidence, I believe or have a reasonable doubt that he was acting in lawful self-defence, I must find Mr. Doerr not guilty.

31This formulation reflects that the onus remains upon the Crown to disprove self-defence beyond a reasonable doubt. Mr. Doerr is entitled to the presumption of innocence and does not have the legal burden to establish anything in this case. However, should the Crown disprove any one of the Catalyst, the Motive or the Response than the defence fails.

Evidence Adduced at Trial

Video Footage Showing the Altercation

32This is a very short video, representing an altercation that was concluded in a matter of approximately 10 seconds. The video is approximately 50 seconds in length. It shows the bar’s dance floor, and the quality of the video is impacted by the strobe lighting and the young adults jumping up and down on the very crowded dance floor. There is no sound and there is no way anyone could tell what the participants in the fight are saying to each other. Nonetheless, the quality of the video was quite good, and the video provided clear evidence of what transpired. I consider it the best evidence available in this case.

33It must be kept in mind that I was able to watch the video as many times as I wished. I could also slow it down and pause it. It was thus possible for me to parse out the events as they unfolded. However, it must not be forgotten that the events clearly all happened very quickly, spontaneously and that the participants’ perspective would be substantially different than the camera’s perspective. I will also add that “normal speed” for this video, in my opinion, was not the same speed as live and in person. The video running at “normal speed” was, in my view, sped up considerably. If anything, I would say that the speed at which I reviewed the video was closer to real life speed.

34Mr. Gerliep is easily identifiable on the video. He is a stocky, muscular appearing man. He is wearing a black and white checked shirt and a white baseball cap, on backwards. He is visible throughout the majority of the video, except for a brief second where the melee takes place off camera.

35At the beginning of the video, you can see Mr. Gerliep is dancing with two women. He is in the vicinity of a man wearing a white jacket or shirt and a white hat whom Mr. Doerr later identified as his friend “Darnell”. Mr. Gerliep has his back to Darnell, but Darnell is clearly watching him, or perhaps the women that he is dancing with. It is possible that they make contact accidentally, although it is not clear. Mr. Gerliep seems oblivious to Darnell’s presence and is focused on the women. Darnell does seem to be paying attention to Mr. Gerliep and looking at him, or perhaps past him. Mr. Gerliep is dancing with some enthusiasm and likely was not particularly mindful of his space.

36Meanwhile, Mr. Doerr enters the picture from the bottom left of the screen with two friends, Brandon Hewitt and Zachary McLelland, and they walk across the dance floor towards Darnell. Mr. Doerr is wearing a dark-coloured tee-shirt and jeans, and a Cleveland Indians ballcap. Mr. Doerr is fit and muscular. Zachary is wearing all black and is immediately behind Mr. Doerr. Brandon, who has a beard, is wearing a black shirt and khakis and is walking immediately behind Zachary. Mr. Doerr and friends do not beeline straight to Mr. Gerliep. As they walk onto the dance floor, Mr. Doerr turns around a couple of times and looks in the direction of Zachary who is immediately behind him, and Brandon, who is right behind Zachary.

37The three men enter the opposite side of the dance floor from where Mr. Gerliep is dancing and move towards Darnell. Darnell is situated between Mr. Doerr and Mr. Gerliep at that point. Darnell turns and looks over his right shoulder at Mr. Doerr. Darnell and Mr. Doerr clearly converse. Mr. Doerr’s two friends are there too and there is clearly a conversation between those four, as well as two other men. One of those men is tall and wearing white. The other is smaller and wearing a white shirt with a large logo on its front. Mr. Gerliep remains a few metres away, dancing and still does not seem to be aware of the group. Darnell and the tall man wearing white have their back to Mr. Gerliep. Of the six men standing having a conversation, Mr. Doerr is the farthest away from Mr. Gerliep, but facing him. This is a very short conversation, a matter of a few seconds.

38Mr. Doerr is the first to move towards Mr. Gerliep and he cuts through his friends as he does so. It is Mr. Doerr that gets Mr. Gerliep’s attention and it looks to me like he tapped him on the shoulder. Mr. Doerr then backs away into his group of friends but is now clearly engaged with Mr. Gerliep. You can see the two men clearly locking gazes. Mr. Gerliep then moves towards the group and he and Mr. Doerr lean towards each other. They are standing approximately one metre apart. They are clearly having words. They lean into each other so that their heads are separated by less than a foot. Their heads move apart. They have not taken their eyes off of each other’s face. They lean into each other at least a couple of times and it must be so that they can exchange words.

39You can see Mr. Doerr extend his left arm towards Mr. Gerliep’s chest and make a pushing motion, and the men separate by about a metre and a half. However, to my eye it does not look like a shove so much as just putting his hands on Mr. Gerliep’s chest. Mr. Doerr points at Mr. Gerliep with his right hand. Mr. Doerr puts his hands on Mr. Gerliep’s chest at least two or three times. They lean into each other again. At this stage, Brandon gestures with his right hand too. Then Mr. Gerliep takes a step backwards and suddenly lunges at Mr. Doerr, possibly throwing a punch, moving a number of people, including Mr. Doerr, backwards and knocking some people to the ground. Just before Mr. Gerliep lunges, Mr. Doerr has raised his left hand and poked Mr. Gerliep in the chest.

40Then, Mr. Gerliep and Mr. Doerr are both momentarily off camera. It is not for more than a second or two. Brandon is visible and is clearly throwing punches. All of the individuals I have described wearing white are disengaged from this part of the events. It is very hard to see where Zachary is, but I think he is part of the tangle.

41Then the mass of people returns to the centre of the camera shot. Mr. Doerr is on his feet. It looks like Brandon now has hold of Mr. Gerliep. Then Mr. Gerliep is on the ground. Brandon goes to the ground with him. Mr. Doerr is standing over both of them. Brandon gets pulled off of Mr. Gerliep and gets moved off screen. I believe that you can see Zachary being pulled off of Mr. Gerliep. Zachary does not appear to kick Mr. Gerliep.

42While Mr. Gerliep is clearly lying on the ground Mr. Doerr is above him and clearly kicks or stomps him at least twice with his foot. Mr. Doerr is also swinging his fists at Mr. Gerliep while he is standing over him. It is difficult to discern what part of Mr. Gerliep’s body Mr. Doerr kicked or punched. However, you can see Mr. Gerliep’s feet, and that Mr. Doerr is dealing blows to the other end of Mr. Gerliep. This is where Mr. Gerliep’s head would be. Zachary has been pulled away by the time that Mr. Doerr is kicking and punching Mr. Gerliep on the ground. Mr. Doerr is dealing vicious blows. I note that Darnell is relatively uninvolved in the actual fight, although he does appear to make a pushing motion or perhaps attempt to pull Mr. Doerr off Mr. Gerliep.

43Mr. Doerr then either falls or jumps on top of Mr. Gerliep. While on top of him, Mr. Doerr continues to throw hard punches at Mr. Gerliep. Again, it is difficult to determine if and where those blows land upon Mr. Gerliep.

44Then security is pulling Mr. Doerr off of Mr. Gerliep. Bouncers have already grabbed Zachary and Brandon and forcibly removed them from the fray. While security is pulling Mr. Doerr off of Mr. Gerliep, Mr. Doerr continues trying to strike Mr. Gerliep.

45Mr. Gerliep is then able to get to his feet and flails about wildly at those around him, who were not involved in the fight and appear to be trying to help him up. He seems to specifically go after Darnell, but stumbles back to the ground. I do not believe that he was pushed. He does not hit his head on the floor when he stumbles as he is able to put his arms out. The bouncers then appear and grab Mr. Gerliep. You can see Darnell talking in the background with the very tall man wearing white and the other man in white with the logo.

46I stress that you cannot tell what occurred off camera prior to these events. It is certainly possible that Mr. Doerr and his friends followed Mr. Gerliep onto the dance floor and that this was the continuation of some earlier verbal confrontation. However, I accept that this is mere speculation on the evidence and place no weight on this conjecture.

Footage from the Cameras Outside

47These videos were taken post altercation. Again, at “normal speed” they are clearly sped up from real speed. If anything, the speed at which I viewed the video was closer to real life speed.

48The video facing northbound shows Mr. Doerr and his friends talking in a small group. In her testimony, Ms. Siy identified the people in the video. She is there. Her brother, Christian, is wearing a yellow and black checked shirt. He was not visible in the dance floor video, and I conclude was not involved at all in the skirmish. She identified Brandon as having the beard. Brandon is wearing a black tee shirt with khakis. Zachary is standing nearby talking to a man in a hat. From Ms. Siy’s evidence, I have no doubt that I have correctly identified Brandon, Zachary and Mr. Doerr in the dance floor video.

49Mr. Doerr points to a rip in his t-shirt several times.

50Brandon is very animatedly making punching motions and I infer that he is describing the fight, with some enthusiasm. There is no question that the men are recounting the fight and smiling and laughing at times.

51They are joined by another small group of people and Mr. Doerr gestures to the rip in his shirt a couple of times. He and Brandon exchange what could be a celebratory hand clench with each other. I place no weight on this observation as it may have nothing to do with the previous fight.

52The Crown argued that the video shows Mr. Doerr making a kicking motion, as if demonstrating how he kicked Mr. Gerliep. I agree that Mr. Doerr picks up his foot, but I cannot conclude that he is demonstrating a kicking motion in the same fashion as Brandon had demonstrated a punching motion. It is possible but I place no weight on this given the ambiguity.

53The southbound video adds little to the case, in my view. Mr. Doerr exits an area around the front door. I cannot tell if he was back inside the bar or not. He glances and gestures at the rip in his shirt again. He is talking on his cellphone. He leaves the area alone, walking northbound, while still talking on his cellphone.

Witness Testimony

54I do not intend to recite each witness’ evidence at great length.

Evidence of Kitana Siy

55I thought Ms. Siy testified in a credible fashion.

56Ms. Siy was the designated driver that night for Christian and his friends. She has known Mr. Doerr for her whole life.

57Ms. Siy identified the group standing out front of Jack’s after the altercation had concluded. She says that she was angry about them getting kicked out. She asked Mr. Doerr what happened, and he replied, “the guy hit him so he hit him back”. She agreed that the men were describing how they were fighting. She cannot recall what precisely Mr. Doerr said about the fight. Brandon was the one doing most of the talking about the fight.

Evidence of Tyler Gerliep

58Mr. Gerliep testified in a straight-forward manner. He did not appear to guess or exaggerate. He was frank about admitting that he had no recollection of the events. He believed that his memory was impaired both by the amount of alcohol that he consumed that night and by his brain injury. His testimony provides no greater insight into what transpired than what is observable on the dance floor video. Accordingly, Mr. Gerliep’s evidence was not particularly helpful to the issues in play in this case.

59I note that Mr. Gerliep is a large man. He testified that he has put on considerable weight since the incident.

60Mr. Gerliep could not say how much alcohol he consumed that night. He could not remember if he had been drinking at the bar but does remember drinking at his apartment before he went out.

61Mr. Gerliep testified that the next thing he remembers is being struck on the ground inside the bar. He was not sure by whom. He was hit on his head, and it felt like he was kicked multiple times. He was lying on the dance floor when a bouncer helped him up and took him to the back balcony.

62Mr. Gerliep could not testify as to what started the fight. He has no recollection of who struck him or the conversation that preceded the fight. He has no independent memory of the events.

63He knows that he was panicky in the hospital because they were restraining him. When he woke up in the morning, he was advised that he had bleeding about his brain and needed surgery. He has not fully recovered his cognitive function. He has extreme depression, PTSD when sleeping, short term memory problems and feels that his quality of life is different. He has tried to work since the injury but has found it very hard to maintain work. He had been working full-time before this incident.

Evidence of the Accused, Connor Doerr

64Mr. Doerr was soft spoken. I had considerable difficulties with aspects of his testimony, as I will endeavour to explain. His own spin on the video evidence clearly downplayed his actions.

65Mr. Doerr indicated that the group had consumed alcohol prior to arriving at Jack’s. He thought that he had consumed three or four whiskey shots before leaving his home. They arrived around 11:00 pm, he believed. He consumed a further three to four shots of Jägermeister at Jacks. Nonetheless, he described that he did not feel intoxicated. On cross-examination, he described himself as “slightly intoxicated”.

66Mr. Doerr agreed that he was in “decent” physical shape at the time of the incident. However, he is bigger now as he has beefed up. He is trying to achieve the physical requirements in order to work as a paramedic.

67Mr. Doerr indicates that he does have an independent recollection of the altercation. He identified himself as wearing a Cleveland Indians baseball cap. He denied that he had ever met or seen Mr. Gerliep before that night. I accept that evidence.

68Mr. Doerr described that while he was on the dance floor, Mr. Gerliep approached him and seemed aggressive as if he wanted to fight or start an altercation. Mr. Doerr was not sure what to do. He says that Mr. Gerliep grabbed him and lifted him off the ground. He was driven backwards as the floor was slippery. Mr. Gerliep threw a wild punch at Mr. Doerr but missed.

69Mr. Doerr described being in fear for his life. He was in fight or flight mode and had to hit Mr. Gerliep to get him off of him. Mr. Gerliep ripped Mr. Doerr’s shirt grabbing and pulling him.

70Mr. Doerr described that he had had ACL surgery on his left knee about one month earlier and had just regained almost normal range of motion in his knee. He had been on crutches the week prior.

71Mr. Doerr did acknowledge that he pushed Mr. Gerliep back a few feet prior to Mr. Gerliep lunging at him. He cannot remember if Mr. Gerliep said anything to him. The music was loud.

72When Mr. Gerliep was on the ground, Mr. Doerr states that Mr. Gerliep was trying to get back up and grab him. He was rocking back and forth to gather momentum to get back to his feet. He was also waving his arms. Mr. Gerliep was grabbing and pulling at Mr. Doerr’s legs and upper body. Mr. Doerr explained that he was trying to defend himself and get away. Mr. Doerr threw a punch at Mr. Gerliep while he was trying to get up and attack him. He cannot say what part of Mr. Gerliep he hit. It is possible that his feet made contact with Mr. Gerliep when he was getting grabbed. He was careful not to describe himself as making a kicking motion. He was trying to gain his balance and get free.

73Mr. Doerr fell when Mr. Gerliep was grabbing at his legs, falling on top of Mr. Gerliep while he lay on the ground.

74Mr. Doerr denied being aware that anyone else was involved in the fight. He says that his view of his friends was blocked when he got pushed backwards.

75Mr. Doerr was cross-examined effectively. Mr. Doerr did poorly on cross-examination in my view.

76When confronted with the video, Mr. Doerr maintained that he did not kick Mr. Gerliep in the head. He indicated that he does not see himself kicking in the video. He denied kicking Mr. Gerliep at all in the head.

77When he walked onto the dance floor, Mr. Doerr denied that he was targeting Mr. Gerliep. He describes that the altercation started for no reason. He denied knowing that Brandon was standing behind him, but he did know that Zachary was there. During the whole incident, Mr. Doerr described that he did not know that Brandon was with him on the dance floor. It was not until later when Brandon told him that he was involved that Mr. Doerr learned of his presence.

78Mr. Doerr described that when he and Mr. Gerliep were standing face to face, they were having a conversation. Mr. Doerr described that he was in a passive state where he was trying to get Mr. Gerliep out of his face, so he put his hands up to keep him away from his face. He put his hands on Mr. Gerliep to “defend his personal space”.

79For the first time during his testimony, Mr. Doerr described that Mr. Gerliep asked him “Are you trying to fight?”. Mr. Doerr described that he responded in a confused and scared state, “I don’t know, are you?” In examination-in-chief, Mr. Doerr had testified that he could not remember if Mr. Gerliep said anything and then referenced that the music was loud. Incredibly, Mr. Doerr described that his focus was on Mr. Gerliep and he could not see his friends at his side.

80Mr. Doerr denied that anything was said before Mr. Gerliep lunged forwards. I do not accept that to be true. He agreed that the video shows him pointing his finger at Mr. Gerliep. He maintains that he does not remember what he was saying to Mr. Gerliep at that point. He attributed that to the passage of time. He denies threatening Mr. Gerliep or that he could have threatened him. He just remembers being “confused and scared”. He described Mr. Gerliep as having touched him prior to that.

81Mr. Doerr, confronted with the video, denied kicking Mr. Gerliep in the head while he was down. He denies that a bouncer pulled him off Mr. Gerliep, instead saying that he was standing straight up when the bouncer grabbed him.

82Mr. Doerr denied that he or Brandon had skills as fighters.

83Mr. Doerr denied intentionally kicking Mr. Gerliep in the head or anywhere on his body. However, he might have hit him with his legs when he was trying to free himself. He denied demonstrating a kicking motion to his friends after the fight out front of Jack’s.

Mr. Doerr’s Credibility

84As I described earlier, Mr. Doerr was not a very credible witness. The best evidence in this case was the video from the dance floor. Mr. Doerr’s evidence was at substantial odds with that video. In my view, his evidence was self-serving and was not credible. The video would be the most accurate piece of evidence about what transpired. Seeing is believing.

85First of all, Mr. Doerr described that while he was on the dance floor it was Mr. Gerliep that approached him. That is not what the video shows at all. Mr. Doerr unequivocally engaged Mr. Gerliep first while on the dance floor.

86I do not accept that Mr. Doerr was “in fear for his life”. On camera he is every bit as aggressive as Mr. Gerliep when the two men are standing toe to toe. Mr. Doerr puts his hands on Mr. Gerliep’s chest first. I do not accept that this was a defensive posture. It was an aggressive posture.

87Mr. Doerr during examination-in-chief testified that he could not remember if Mr. Gerliep said something to him. In cross-examination, he did remember Mr. Gerliep asking him “are you trying to fight?” I do not accept that Mr. Doerr responded in a scared and confused state. That description does not coincide with the video evidence. The video clearly shows that words were exchanged, and I do not believe that Mr. Doerr did not know what those words were. I do not believe Mr. Doerr’s stated response.

88Mr. Doerr also described being in a “passive state” during his conversation with Mr. Gerliep. To the contrary, the video demonstrates that Mr. Doerr was being aggressive with his hands, and in particular, pointing directly at Mr. Gerliep in a menacing fashion.

89As to Mr. Doerr’s testimony of being in fear generally, the only real use that I place upon the outside videos, besides their value in identifying the individuals involved in this matter, is that Mr. Doerr was clearly unafraid by this point. He was clearly discussing the fight with Brandon, who does appear to gleefully demonstrate his own role in the scrum. Most importantly, having no idea where Mr. Gerliep may be, Mr. Doerr is simply hanging around the general vicinity. It is difficult to conclude that he is fearful, at least at this juncture.

90Mr. Doerr testified that he did not know what started the altercation and that it started for no reason. I do not believe that evidence. Again, the video shows Mr. Doerr crossing through his circle of five friends and engaging Mr. Gerliep. Mr. Doerr knows why the two men became engaged even if he did not disclose this to the court.

91Mr. Doerr testified that he knew that Zachary was with him when he was crossing the dance floor but denied knowing that Brandon was there. Again, the video shows Mr. Doerr turn his head and look at his friends while he walks. He is standing with a group of his friends on the dancefloor. It is not credible that he did not know that Brandon, or his other friends, were with him during his confrontation with Mr. Gerliep.

92Mr. Doerr downplayed any kicking motion, suggesting that he was merely shaking Mr. Gerliep away from his feet. The video demonstrates that Mr. Doerr violently kicked Mr. Gerliep at least once, if not several times. There is no mistaking the action as being other than a kicking motion. He also was clearly pulled off of Mr. Gerliep by a bouncer.

93The video was played at “normal speed” during Mr. Doerr’s testimony. Thus, I accept that his ability to describe his own actions on the video would be made more difficult. However, his testimony is completely incompatible with what the video shows actually occurred. I reject his evidence.

94This does not, however, end the inquiry. I must still be satisfied beyond a reasonable doubt that the remainder of the evidence which I accept proves Mr. Doerr’s guilt.

Self-Defence

95The Crown rightly conceded from the outset that there was an air of reality to Mr. Doerr’s claim of self-defence. I turn now to consider the three constituent elements of the defence. The Crown must disprove at least one element beyond a reasonable doubt.

The Catalyst—s. 34(2)(a)

96As described in Khill, supra, at para. 52, whether Mr. Doerr believed on reasonable grounds that force was being used or threatened against him considers his state of mind and the perception of events that led him to act. Mr. Doerr’s subjective belief is the focus, but they must be held “on reasonable grounds”. Thus, there is also an objective component.

97However, “reasonableness is not considered through the eyes of individuals who are overly fearful, intoxicated, abnormally vigilant or members of criminal subcultures” (Khill, at para. 56).

98At least at some point during this encounter, it is reasonable to believe that Mr. Doerr believed that Mr. Gerliep was using force. Mr. Gerliep was, in fact, using force. I find that the “Catalyst” element of self-defence is not disproven.

The Motive-- s. 34(2)(b)

99This element requires that the act be undertaken by the accused to defend or protect themselves from the use or threat of force. It is a subjective inquiry. There must be a defensive or protective purpose or the rationale for self-defence disappears (see: Khill at para. 59). In Khill, Justice Martin notes that an accused’s purpose for acting may evolve as an incident progresses or escalates (Khill, at para. 61).

100I find that when Mr. Doerr first engaged Mr. Gerliep by approaching him, it was not for any defensive or protective purpose. To the contrary, it was predatory. I find that when Mr. Doerr put his hands on Mr. Gerliep’s chest, Mr. Doerr was not doing so in a defensive manner, but instead was being hostile. Mr. Doerr pointed antagonistically at Mr. Gerliep. True, the first significant act of physical violence was by Mr. Gerliep, when he lunged and threw a wild punch at Mr. Doerr. Mr. Doerr then was required to fight back, and one could certainly argue that he was acting defensively at that point.

101However, once Mr. Gerliep went to ground, Mr. Doerr’s actions cannot reasonably be construed as defensive. I accept that Mr. Gerliep was flailing about. I do not accept that Mr. Doerr’s actions were done to extricate himself from the melee. To the contrary, by kicking and swinging his fists at Mr. Gerliep, I find that his intention was to inflict harm upon him. The fact that he was not acting defensively is supported by the difficulty the bouncer had in removing Mr. Doerr from on top of Mr. Gerliep.

102Although the law of self-defence was amended when the current version of s. 34 of the Code was enacted, in R. v. Paice, [2005] 1 S.C.R. 339, it was described at paragraph 20 that where a person willingly engages in mutual combat, he cannot later rely on self-defence. In my view, that sentiment applies here.

103I am satisfied that the Crown has disproven this element beyond a reasonable doubt based on the video. However, I am still going to proceed with the s.34(2)(c) analysis in case I am later found to be in error.

The Response-- s. 34(2)(c)

104Mr. Doerr’s response to the use or threat of force must have been reasonable in the circumstances and I am obligated to consider the enumerated factors, recognizing that they are not exhaustive. In Khill, it is noted that otherwise the law of self-defence might encourage “hot-headedness”.

105In determining the reasonableness of Mr. Doerr’s actions, I start by noting that Mr. Gerliep was clearly a large man who I find was very intoxicated, given the blood alcohol level taken at hospital, as well as my observations of him on the dance floor. Further, once Mr. Doerr got his attention, Mr. Gerliep clearly adopted a threatening posture.

106I also note that Mr. Doerr was clearly fit, athletic and strong looking. He was with five friends, all in close proximity to him at the relevant time. His five friends all appeared fit, although not as physically built as Mr. Doerr. Brandon, at the very least, demonstrated that he could throw a punch. These were all young men that had been drinking.

107I reject that Mr. Doerr did not know that his friends were with him, as he testified on cross-examination. To the contrary, as he walked on the dance floor he looked behind him where Zachary and Brandon were following. He stood in a circle of his friends and briefly conversed, and he cut through them to engage Mr. Gerliep initially. I find that Mr. Doerr was well aware that he had the numerical advantage against Mr. Gerliep during their confrontation. I am also mindful of the fact that Mr. Doerr’s companions had been his good friends since childhood, and he would have confidence that they would have his back if necessary.

108In considering the nature of the force, factor (a), Mr. Gerliep was not holding any weapon, or object like a bottle, for example, and thus was unarmed. Mr. Doerr was similarly unarmed. However, I find that a reasonable person would likely perceive that Mr. Gerliep was capable of causing considerable injury if engaged in a fight. I also conclude that it would be reasonable for Mr. Doerr to be fearful of being significantly injured.

109In terms of whether the use of force was imminent, once the two men got into each other’s personal space, I find that there was a mutually imminent threat of force. It is important to consider that this would operate both ways. Mr. Doerr was clearly in Mr. Gerliep’s face too. Mr. Doerr had five friends in close proximity. In other words, Mr. Gerliep would also perceive the potential imminent use of force, especially given that Mr. Doerr was placing his hands on his chest and pointing his finger at him aggressively.

110In Khill, supra, Justice Martin, in discussing how to consider the accused’s role in the incident, held that it is not limited to the moment of the act of self-defence. She described, at para. 89:

[89] Self-defence is not meant to be an insurance policy or self-help mechanism to proactively take the law—and the lives of other citizens—into one’s hands…by including the person’s “role in the incident” in s. 34(2)(c), “a protection is hopefully present to prevent self-defence from becoming too ready a refuge for people who instigate violent encounters, but then seek to escape criminal liability when the encounter does not go as they hoped and they resort to use of a weapon.” The law should encourage peaceful resolution of disputes. It should not condone the unnecessary escalation of conflicts.

(Emphasis added by me)

111Justice Martin later stated, at paras. 123-124:

[123] In sum, the ultimate question is whether the act that constitutes the criminal charge was reasonable in the circumstances. To answer that question, as Parliament’s inclusion of a “person’s role in the incident” indicates, fact finders must take into account the extent to which the accused played a role in bringing about the conflict or sought to avoid it. They need to consider whether the accused’s conduct throughout the incident sheds light on the nature and extent of the accused’s responsibility for the final confrontation that culminated in the act giving rise to the charge.

[124] The phrase enacted is broad and neutral and refers to conduct of the person, such as actions, omissions and exercises of judgment in the course of the incident, from beginning to end, that is relevant to whether the act underlying the charge was reasonable—in other words, that, as a matter of logic and common sense, could tend to make the accused’s act more or less reasonable in the circumstances. The conduct in question must be both temporally relevant and behaviourally relevant to the incident. This is a conjunctive test. This includes, but is not limited to, any behaviour that created, caused or contributed to the confrontation. It also includes conduct that would qualify under previous concepts, like provocation or unlawfulness, but is not limited to or circumscribed by them. It therefore applies to all relevant conduct, whether lawful or unlawful, provocative or non-provocative, blameworthy or non-blameworthy, and whether minimally responsive or excessive. In this way, the accused’s act, considered in its full context and in light of the “equities of the situation”, is measured against community standards, not against the accused’s own peculiar moral code (Paciocco (2014), at p. 290; Phillips, at para. 98).

(Emphasis added by me)

112Thus, it is clear that I must consider Mr. Doerr’s “role in this incident” not only during the altercation, but in the time preceding the fight. I must consider how his actions leading up to the fight contributed to the confrontation.

113I do not have any evidence about what transpired before the events on the dance floor. Mr. Gerliep has no memory of the events and Mr. Doerr testified that he had no prior encounter with Mr. Gerliep. However, it certainly appears that Darnell had some reason to have an interest in Mr. Gerliep from the video footage. When Mr. Doerr approached Darnell they clearly spoke briefly and then, almost instantaneously, it was Mr. Doerr that instigated the encounter with Mr. Gerliep by approaching him, and I believe touching him to get his attention.

114Mr. Doerr had also been drinking. He described himself as slightly intoxicated. He testified to consuming 6-8 shots of hard liquor and must have been feeling some effects of the alcohol.

115Mr. Doerr clearly was aggressively talking with Mr. Gerliep prior to the fight. They leaned in close to each other. Mr. Doerr raised his arms and put his hands on Mr. Gerliep’s chest multiple times. I reject Mr. Doerr’s evidence that this was a defensive gesture. Mr. Doerr pointed aggressively at Mr. Gerliep. As noted by Justice Martin, provocation is still part of the analysis under s. 34(2)(c). I find that there was an element of provocation on the part of Mr. Doerr, by both his words and his gestures.

116Furthermore, once the fight broke out in earnest, Mr. Doerr and at least two of his friends, Brandon and Zachary, got Mr. Gerliep onto the ground. At this point, I find that Mr. Doerr’s punches and kicks to Mr. Gerliep with such ferocity to be an excessive response, even if Mr. Gerliep was still flailing about. In my view, the law demands that a person not land such blows. Mr. Gerliep’s substantial injuries could have been avoided had the attack ceased. Mr. Doerr’s actions far exceeded what was necessary or reasonable in the circumstances. I acknowledge that Mr. Gerliep was not incapacitated. I also acknowledge that when he did get up, he was still actively aggressive. Nonetheless, he was down and extremely vulnerable. While there is no obligation on a person claiming self-defence to retreat, self-defence does not include “finishing him”. Mr. Doerr could have walked away.

117I recognize that caution must be taken in judging the “niceties” of a person’s actions when faced with such circumstances. A person who is under attack and defending themselves cannot be expected to weigh to a nicety the exact measure of the defensive action required. I reiterate that I have taken into consideration that I was able to watch the video on a slow speed, although I say close to real life speed, and that everything happened at real life speed, in a loud, dark and crowded bar, with strobe lights going over approximately 10 seconds. Furthermore, all the participants had been drinking.

118I do not put any significant weight on the two videos that show Mr. Doerr and his friends outside after they were thrown out of Jacks. I need not decide how far after the altercation the court can and should look in determining the reasonableness of a person’s actions. Here, those videos do not assist me in determining what transpired inside, except, perhaps, to discredit the notion of Mr. Doerr being very afraid.

119I must also consider that on the evidence, Mr. Doerr and Mr. Gerliep were strangers to one another before that night. S. 34(2) requires the court to consider the parties’ history with one another. Not having a history is relevant too, because it means that there is uncertainty in the encounter for both participants. They can only guess how the other may act, and react, to the situation as it unfolds. That uncertainty, in my view, obligates the person relying upon self-defence to exercise greater caution than Mr. Doerr did leading up to the physical skirmish. Engaging an unknown adversary is reckless.

120In my view, the law cannot condone the behaviour that happened here. I recognize that Mr. Gerliep is not blameless—far from it. Had Mr. Doerr been badly injured, I doubt that Mr. Gerliep would have been able to rely on self-defence either. But Mr. Doerr’s actions were simply not “reasonable in the circumstances”.

121I find that the Crown has proven beyond a reasonable doubt that Mr. Doerr’s actions were not reasonable in the circumstances.

122Therefore, having found that the Crown has disproven s.34(1)(b) and (c), I conclude that self-defence does not apply in these circumstances.

Aggravated Assault

[123] Despite my determination that Mr. Doerr cannot rely upon self-defence, the Crown still must prove beyond a reasonable doubt that the elements of the offence are made out. I repeat that the necessary elements are: (a) that Mr. Doerr intentionally applied force to Mr. Gerliep; (b) that Mr. Gerliep did not consent to the force that Mr. Doerr intentionally applied; (c) that Mr. Doerr knew that Mr. Gerliep did not consent to the force that Mr. Doerr intentionally applied; (d) that the force that Mr. Doerr intentionally applied endangered the life of Mr. Gerliep; and (e) that a reasonable person, in the circumstances, would realize that the force applied would put the complainant at risk of suffering some kind of bodily harm, although not necessarily serious bodily harm or the precise kind of harm that the complainant suffered.

Intentionality

124“Intentionally” means on purpose, as opposed to by accident. I have no hesitation in finding that the Crown has proven beyond a reasonable doubt that Mr. Doerr’s application of force was intentional. I take into consideration my finding that he approached Mr. Gerliep first. I take into account my finding that Mr. Doerr put his hands upon Mr. Gerliep’s chest and aggressively pointed at him before the physical altercation began. I take into account that Mr. Doerr clearly threw several blows, with both his hands and feet, while Mr. Gerliep was lying on the ground.

Consent

125Consent involves a consideration of Mr. Gerliep’s state of mind. For him to have consented, he has to know what Mr. Doerr is going to do and voluntarily decide to let him do it.

126The law will allow people to consent to a physical fight: R. v. Jobidon, [1991] 2 S.C.R. 714 and R. v. Paice, [2005] 1 S.C.R. 339. However, under Canadian law, a person cannot consent to the intentional infliction of bodily harm to himself by another person. Consent is vitiated if serious hurt or non-trivial bodily harm is both intended and caused.

127Thus, in the circumstances of the injuries sustained by Mr. Gerliep, if they were caused by Mr. Doerr, I find that the Crown will have proven beyond a reasonable doubt that Mr. Gerliep did not consent to the force and that Mr. Doerr knew that Mr. Gerliep did not consent to that level of force being applied. Kicking and stomping at a person is objectively likely to result in bodily harm and Mr. Doerr must be taken to have intended the natural consequences of such action.

Causation

128In determining whether the force that Mr. Doerr intentionally applied endangered Mr. Gerliep’s life, the real issue is whether or not the Crown has proven beyond a reasonable doubt that it was the blows dealt by Mr. Doerr that caused Mr. Gerliep’s injuries.

129From the Agreed Statement of Facts, I am satisfied that the injuries were life-threatening. It is agreed that absent the emergency surgery, Mr. Gerliep could have died. Thus, the blows “endangered Mr. Gerliep’s life”.

130It must be recalled that the necessary mens rea of the offence is objective foresight of bodily harm. Further, there does not have to be proof of an intent to maim, wound, disfigure or endanger the life of the complainant (see: Leclerc, supra). It is clearly objectively foreseeable that punches and kicks to the head can lead to serious injuries to the head, and the brain. I find that the injuries that Mr. Gerliep suffered were objectively foreseeable and that mens rea for the offence has been proven.

131There is no indication that Mr. Gerliep arrived at the bar with any head injury, and I find that he did not. However, causation in this case is made difficult by the fact that a second or two of the altercation occurred off camera. We cannot see whether or not Mr. Gerliep sustained any blows to the head during that portion of the fight. Furthermore, when Mr. Gerliep returns into the camera frame, he goes to the ground, and it is difficult to see his head. Therefore, one cannot determine whether or not he struck his head when he fell on that occasion. It is also difficult to tell whether Mr. Doerr’s punches and kicks connected with Mr. Gerliep’s head. As I noted above, Mr. Gerliep’s feet are clearly visible on the video and are not near Mr. Doerr. I find that Mr. Doerr was punching and kicking at Mr. Gerliep’s head area.

132I do not accept that Mr. Gerliep’s head injury was sustained after he got up, staggered around and went back to the ground. The video shows that he clearly did not strike his head on that occasion. He was able to put his hands out and his head did not hit the floor. Furthermore, I find that he was not pushed to the ground by any other person such that even if he did stagger and fall, this is in my view would be the result of being stunned by the blows inflicted upon him by Mr. Doerr, or his friends, and, thus, would not constitute an intervening cause.

133Given that Mr. Gerliep’s injuries, according to the Agreed Statement of Fact, included severe swelling to his right eye and face, an abrasion to the rear of the head (occipital area) and an occipital and suboccipital right-sided epidural hematoma, I find as a fact that Mr. Gerliep was either struck in the head or hit his head against the floor when he fell during the tussle with Mr. Doerr, Brandon and Zachary.

134The Crown relies upon R. v. Rocchetta, supra. In that case, the complainant received blows to his face by one assailant and another assailant kicked and punched him while he was down on the ground later. The first assailant argued that the trial judge’s determination that he caused the complainant’s very serious eye injury was flawed. In rejecting that argument, the Court stated as follows, at para. 20:

[20] Causation is a matter of inference from the evidence. It is wholly untenable to suggest that the blow struck by Jordan to Mr. Doan’s eye was not a significant contributing cause of the injury to Mr. Doan’s eye. Whether a later blow or blows struck by Ryan or someone in the group that jumped on Mr. Doan after he had been knocked to the ground by Jordan also had some role to play in the injury is of no legal consequence: see R. v. Maybin, [2012] 2 S.C.R. 30, at paras. 15-29.

135That analysis is apt here. Whether or not Mr. Doerr’s blows to Mr. Gerliep’s head were the only blows to Mr. Gerliep’s head is no answer at law. Mr. Doerr will still be considered to have caused the injuries.

136The Crown also relies upon s. 21 of the Criminal Code, arguing that Mr. Doerr is guilty as a party to the offence even if his blows were not the cause of Mr. Gerliep’s injuries, but one of his friends’ blows were. S. 21 of the Code reads as follows:

21.(1) Every one is a party to an offence who (a) actually commits it; (b) does or omits to do anything for the purpose of aiding any person to commit it; (c) abets any person in committing it.

(2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.

137As noted in R. v. Briscoe, [2010] 1 SCR 411, s. 21 of the Code reflects that Canadian law does not distinguish between the principal offender and parties to the offence in determining criminal liability. The actus reus of aiding or abetting is doing something that assists or encourages the perpetrators to commit the offence. The mens rea requirement obligates the Crown to prove that the accused intended to assist the principal in the commission of the offence. The aider must know that the perpetrator intends to commit the crime, although he need not know precisely how it will be committed.

138R. v. Vang, is a case in which s. 21 of the Code was applied in the context of an aggravated assault. In that case, the three accused fought against the one victim, and one of the accused stabbed the victim. It was determined in that instance that bodily harm was objectively foreseeable as a probable consequence of engaging in the fight and that parties to the offence are bound by the consequences in the same manner as the actual perpetrator.

139It was also described in Vang that while there must be an intention in common, “this phrase means no more than that two or more persons must have in mind the same unlawful purpose. The common intention may not be formed or articulated in advance of the action, but may arise at the instant of the offence being committed, but mutual intention to pursue unlawful purpose and to assist each other therein being formed at the very moment of carrying it out”.

140In the case before me, I conclude that Mr. Doerr, by kicking and punching at Mr. Gerliep’s head, was, in fact, the actual perpetrator of the blows that caused Mr. Gerliep’s life threatening injuries. However, even if the head injuries were sustained by one of the blows thrown by Brandon or Zachary, or were incurred when Mr. Gerliep was taken to ground, that provides no answer to Mr. Doerr and he would still be bound by the consequences under s. 21 of the Code. I find that the three men, engaged in the fight with Mr. Gerliep, were joint perpetrators.

141Alternatively, causation is made out based on the conclusion in R. v. Rocchetta. As I am satisfied that Mr. Doerr punched and kicked Mr. Gerliep in his head, it is of no legal consequence that either Brandon or Zachary may have also done so. Mr. Doerr is legally responsible for the natural consequences of his actions.

Disposition

142To complete the W.(D.) analysis, I have already described that I reject Mr. Doerr’s evidence. Furthermore, I am satisfied beyond a reasonable doubt on the evidence that I do accept, primarily the footage from the dance floor, that Mr. Doerr is guilty of aggravated assault and that the Crown has disproven that he was acting in self-defence.

143A conviction on the single count of the indictment shall be entered.