REASONS FOR JUDGMENT

COURT FILE NO.: CR-19-4753 DATE: 2024-05-14

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – Dennis Frail and Ana Maglicic

Counsel: H. Limheng, Counsel for the Crown J. Bothwell, Counsel for D. Frail M. Evans, Counsel for A. Maglicic

HEARD: February 20, 21, 22, 23 and 26, 2024

M. Bordin J.

Overview

[1] Dennis Frail and Ana Maglicic are charged that on or about August 7, 2018 they committed an aggravated assault upon Lindsay Patterson.

[2] Carrie Leveille, Ms. Patterson’s neighbour at the time, Ms. Leveille’s then 18-year-old son Terry, his girlfriend Erica, who was also Ms. Maglicic’s daughter, and the accused were present at the time of the incident. Ms. Leveille’s husband Gary may also have been present for part of the interaction. Ms. Leveille, Ms. Patterson, the accused, and two police officers testified at the trial. The evidence is that Terry died prior to trial.

The Evidence

Lindsay Patterson

[3] Ms. Patterson was about 30 years old in August 2018. She testified that, on the night in question, she arrived at Ms. Leveille’s house by 5:00 p.m. She brought four beers with her. In the prior 60 or so minutes, she had consumed two beers. She estimated the length of time she was in the backyard with Ms. Leveille ranged from a couple of hours to eight hours. She testified that she consumed only two beers during that time and Ms. Leveille drank the other two beers she had brought with her. She said she had no other alcoholic drinks.

[4] Ms. Patterson gave evidence that at some point late in the evening, she heard Terry arguing with Erica in the front yard. She and Ms. Leveille went into the front yard. She told Terry and Erica to stop fighting because the police would be called. She denied interacting with Erica or Terry before going into the front yard.

[5] Ms. Patterson said that Erica struck her on the upper right side of her head with a white shoe for no reason and that the blow knocked her to the ground. She denied saying anything inflammatory of a sexual nature to cause Erica to strike her. When pressed, Ms. Patterson said Erica did this because she did not think that Erica liked her very much. She testified that she thought Erica was a “mental case”. She denied pushing Erica. Although she was furious at having been hit with the shoe, she denied saying “disturbing and shocking things” to Erica.

[6] Ms. Patterson testified that she was on the ground and Erica was kicking her. She assumed the fetal position to protect herself. The details of how she got there are vague. She felt the blows to her body and deduced that Erica was kicking her. She tried to pull herself up using Erica’s shirt. She heard screaming and saw Ms. Maglicic and Mr. Frail running down the street. In-chief, she said she remembered fighting with Erica because she was down and was trying to get up.

[7] Ms. Patterson agreed that when Mr. Frail arrived on the scene, he had no idea what was going on. He screamed at her and said, “What the fuck are you doing with my daughter?” She denied punching Mr. Frail twice in the back of the head and knocking him down. She denied attacking Erica or Ms. Maglicic. She denied that Ms. Maglicic tried to separate her and Erica.

[8] Ms. Patterson said she could not get up because the defendants started “tag teaming” her. They kicked her. She said she “turtled” but could still see that the two defendants and Erica were kicking her. She testified someone was trying to stop the assault by using a bicycle to push the three of them off her; At one time she said it was Terry, and another time she said it was Ms. Leveille’s husband Gary. She testified that the assault on her lasted about 10 to 15 minutes.

[9] Ms. Patterson was shown the 10 photographs of herself in hospital taken by Officer Zsoldos which were marked as Exhibit 1. She testified that she did not recognize the person in the photographs and that she did not really recognize herself.

[10] Ms. Patterson testified that she required facial reconstruction surgery and had a two-centimetre by two-centimetre metal plate installed into her orbital socket. She denies that the injury was the result of her stumbling and falling face first on the sidewalk. There was no evidence of any other injuries to Ms. Patterson.

Carrie Leveille

[11] Ms. Leveille’s evidence was that she and Ms. Patterson drank daily, and they were drunk every night. Her recollection was that Ms. Patterson came over around 10:00 or 11:00 p.m. She guessed that Ms. Patterson brought 12 beers as well as tequila that night which they drank in her backyard. Terry was present. Ms. Patterson made sexual comments to Terry, suggesting that since Erica would not, she could perform fellatio on him. Ms. Leveille said that Erica came into the backyard and heard what they were saying.

[12] Ms. Leveille said that Erica and Terry went into the front yard and Ms. Patterson followed them. Words were exchanged. Erica and Ms. Patterson were upset. There was an argument. Ms. Patterson pushed Erica and Erica pushed her back. Ms. Patterson called Erica names.

[13] Ms. Leveille said Erica was screaming. The defendants came from their house, three or four houses away. There was more shouting and name calling all around. Ms. Leveille said that Ms. Patterson was going to hit Ms. Maglicic and was going to hit Mr. Frail. Ms. Leveille recalled a bike and a sandal being thrown. She thought Erica threw her sandal. The bike did not cause injuries to Ms. Patterson.

[14] Ms. Leveille’s evidence is that the defendants never hit Ms. Patterson and that they never laid a hand on Ms. Patterson. She testified that someone was pounding on Ms. Patterson, but the person was “not here today” and that the person is deceased. She also testified that she remembered Erica and Ms. Patterson “fighting each other” but no one was kicking and punching.

[15] Ms. Leveille said that Ms. Patterson was unsteady on her feet. Ms. Patterson was wobbling around and could not stand straight because she had been drinking. She said Ms. Patterson lost her balance and fell on the concrete walkway, hit the side of her face, and everyone checked to see if she was okay. Ms. Leveille was adamant that Ms. Patterson fell because she was drunk. She said the injuries to Ms. Patterson were caused by falling onto the sidewalk.

[16] After the ambulance took Ms. Patterson away, Ms. Leveille had more to drink. She recalled that the police came back later. She gave a statement to Officer Zsoldos. Permission was granted to cross-examine Ms. Leveille on her prior statement pursuant to s.9(2) of the Canada Evidence Act, R.S.C. 1985, c. C-5.

[17] In her statement, Ms. Leveille said, “The next thing you know Lindsay is on the ground curled up in a ball and everyone is pounding her” and, in response to the question, “Who did you see attacking Lindsay?” she responded, “Erica’s mom and stepdad. I don’t know there [sic] names. It was all three of them, everyone was just kicking and punching her.” Ms. Leveille did not adopt these portions of the statement. She repeatedly denied that Ms. Patterson was struck when she was curled up on the ground. She testified no one was kicking and punching and that the defendants did not kick and punch Ms. Patterson.

[18] Ms. Leveille said she did not read the statement at the time it was made. She remembered it being read to her. She recalled signing something that night. She was trying to be truthful but was drunk. She asserted other details were not included in the statement. Ms. Leveille did not recall what she said to the officer. She said the statement was worded differently from what she had said. She said that she did not lie to the police, but then said she was upset and maybe had lied. Then she said she did not remember. When asked why she would lie to the police, Ms. Leveille said she thought she would be in trouble. She said she signed the officer’s duty book so she could “pass out”.

Dennis Frail

[19] Mr. Frail testified that between 1:00 and 1:30 a.m. on August 7, 2018, he and Ms. Maglicic were getting ready to go to bed when they heard a commotion outside. He said he heard Erica shouting for her mother. He and Ms. Maglicic went outside and walked three houses over to where Ms. Leveille, Gary, Terry, Ms. Patterson, and Erica were screaming at each other on the mutual driveway between the houses of Ms. Patterson and Ms. Leveille near the sidewalk. Mr. Frail said that even from his house Ms. Patterson appeared quite drunk and could not stand straight.

[20] At some point, it is not entirely clear when, Mr. Frail saw Erica hit Ms. Patterson in the head with her slip-on sandal. Ms. Patterson did not hit her back. Mr. Frail testified that he did not see Ms. Leveille or Gary striking Ms. Patterson, but that he saw Terry punch her in the face. He did not say where in the sequence of events this occurred.

[21] Mr. Frail testified that Ms. Patterson was shouting right beside his ear that Erica called FACS on her, that Erica is a fucking bitch and a whore, and that she should suck dick for Terry. He said he turned to her and told her to “shut her drunken cokehead mouth.” Ms. Maglicic then told Erica they should go, and he turned to leave. At that point, he said Ms. Patterson struck him twice on the back of the head. He agreed that although Ms. Patterson was staggeringly drunk, she still had the strength to strike him with enough force from behind that he went to his knees.

[22] Mr. Frail said that Ms. Maglicic then pushed Ms. Patterson and said, “Call the cops this bitch is crazy”. He testified that Erica got between Ms. Maglicic and Ms. Patterson to intervene. Ms. Patterson then grabbed Erica by her hair bun and punched her three times in the nose which broke Erica’s nose and caused blood to splatter on Ms. Maglicic’s face. As a result, Mr. Frail said Ms. Maglicic punched Ms. Patterson three times in the face. At another point, he testified that Ms. Maglicic punched Ms. Patterson three times, but once in the shoulder, once in the jaw, and once to the side of the head.

[23] Mr. Frail said that after Ms. Maglicic stopped hitting Ms. Patterson, Ms. Patterson was on the ground and Ms. Maglicic was on top of her and restrained her until someone called the police. Mr. Frail said Ms. Maglicic pushed Ms. Patterson to the ground. He testified that Ms. Patterson was lying face to the ground. Because Ms. Patterson was spitting on Ms. Maglicic, they turned Ms. Patterson’s head to the right so she could not spit. Ms. Maglicic was not hitting or punching Ms. Patterson at this point.

[24] Mr. Frail testified that about 10 minutes passed from the time he arrived at the scene until the time he left. Mr. Frail said he never laid hands on Ms. Patterson. He did not kick her or punch her. As they were leaving, he looked back because Ms. Patterson was yelling at him. He said that Ms. Patterson got up, took three steps forward, but because she was drunk, she was staggering and fell face first on the curb.

Ana Maglicic

[25] Ms. Maglicic is a strong, imposing woman. It is readily apparent that she is larger and heavier than Ms. Patterson and Mr. Frail. She was almost 43 years old in August 2018.

[26] Ms. Maglicic’s evidence was consistent in many respects with the evidence of Mr. Frail, but more detailed.

[27] When she heard her daughter screaming at about 1:00 to 1:30 a.m., Ms. Maglicic told Mr. Frail that “mama bear wants to see why baby bear is screaming”. She testified that as they were walking toward the gathered group, Ms. Patterson approached and told them to get out of there because it had nothing to do with them. Mr. Frail then told Ms. Patterson to “shut her drunken cokehead mouth”.

[28] Ms. Maglicic said she told Erica to “get her fucking ass home” and they turned to walk back to their house. She testified that Ms. Patterson ran up from behind them on her left side, made a fist with her right hand and described the two blows to the back of Mr. Frail’s head in detail. Ms. Maglicic said that she could smell the alcohol on Ms. Patterson, who was stumbling. In cross-examination, she denied seeing Ms. Patterson run, and then said it was only three steps of running that she saw which she said was not describing someone as “thoroughly running”. Ms. Maglicic said she then pushed Ms. Patterson, who took a step back. She would not acknowledge how hard she pushed Ms. Patterson.

[29] Ms. Maglicic explained where and why she punched Ms. Patterson in the following words:

Because she hit Erica three times, I hit her three times. Once in the shoulder, because she hit my daughter. Once in mouth because of the vulgarities that she was screaming and what the whole ordeal was about, which was Lindsay Patterson wanting to perform fellatio on Terry Leveille. And the third one in the side of the head for her being stupid on hitting my 16-year-old daughter and my husband, Mr. Frail, who is on disability for mental health.

[30] Ms. Maglicic did not testify that she struck Ms. Patterson three times to make her let go of her daughter.

[31] In cross-examination when asked to confirm the second punch was to Ms. Patterson’s jaw, she changed her evidence to say it was a punch to the chest, and then changed it again to the chest and jaw. She denied knowing how forceful her punches were.

[32] When prompted by her counsel, Ms. Maglicic added that Ms. Patterson still had hold of Erica’s hair bun after Ms. Maglicic punched her three times. She testified that Erica punched Ms. Patterson and Ms. Patterson turned and hit Erica again. Ms. Maglicic then punched Ms. Patterson in the shoulder and screamed at her to let go of her child. Erica stumbled, and Ms. Patterson, who was still holding onto her, stumbled as well. Ms. Maglicic said that she then sat on Ms. Patterson when she was on the ground on her back and pinned her biceps and she screamed for someone to call the cops. Ms. Patterson “horked” in her face, which she described as spitting and discharging her sinuses. As a result, Ms. Maglicic took the palm of her right hand and turned Ms. Patterson’s face to the right. In cross-examination, Ms. Maglicic added that this allowed Ms. Patterson to have a free hand which Ms. Patterson used to claw Ms. Maglicic’s face and punch her really hard in the elbow below the bicep. Nonetheless, Ms. Maglicic got up and walked toward Erica to examine her face and helped Mr. Frail up so they could leave.

[33] Ms. Maglicic said that she saw Ms. Patterson sit up on the curb or sidewalk in the fetal position, knees to her chest, arms wrapped around her knees, crying. Ms. Patterson shouted profanities at her, and Ms. Maglicic shouted them back. She testified that Ms. Patterson got up, but being so drunk, she hit her face on the sidewalk curb. Ms. Maglicic took her family home to give them first aid.

[34] Ms. Maglicic denied that a bicycle was in any way involved in the incident. She insisted that she only defended her child until the “perpetrator” let go.

Officer Yu

[35] Officer Yu attended at 5060 Morrison Street in Niagara Falls, Ontario at 1:16 a.m. He observed Ms. Patterson on the ground near the sidewalk in front of the residence. She was bleeding from her face. Ms. Leveille was assisting Ms. Patterson.

[36] At 1:51 a.m., Officer Yu attended at the hospital where Ms. Patterson was taken by ambulance. He spoke with her but was not able to form an opinion on her sobriety. Ms. Patterson was bleeding heavily, in distress, and in a lot of pain. Officer Yu was at the hospital for about 30 minutes.

[37] Officer Yu left the hospital and reattended at Morrison Street. He spoke with Mr. Frail, Ms. Maglicic, and Erica. Officer Yu did not observe any injuries on Mr. Frail. He could not recall whether he observed any injuries on Ms. Maglicic or Erica. Medical treatment was not required for any of the three. He did not observe any signs of intoxication with respect to Mr. Frail. He had no opinion on the sobriety of either Ms. Maglicic or Erica.

Officer Zsoldos

[38] At 1:44 a.m., Officer Zsoldos arrived at the scene to take photographs of blood and gauze on the sidewalk. The photographs were not tendered in evidence. At 2:00 a.m., Officer Zsoldos attended at the Greater Niagara General Hospital and took the 10 photographs of Ms. Patterson marked as Exhibit 1. At 2:29 a.m., he returned to Morrison Street and took a statement from Ms. Leveille. He was in his cruiser. Ms. Leveille signed his duty book at approximately 3:17 a.m. Officer Zsoldos recalls that Ms. Leveille had been drinking but that Ms. Leveille was not intoxicated such that it impacted her ability to make a statement or communicate.

Position of the Parties

[39] The Crown advances two theories of liability. The first is based on the evidence of Ms. Patterson that the defendants were kicking and punching her while she was on the ground and that these blows caused the injury to her orbital bone. The Crown says that I should accept Ms. Patterson’s evidence and if I do, there is no air of reality to the defence of another person where three people beat up on one person who is defenseless and not fighting back, and a conviction for aggravated assault would follow.

[40] The Crown’s second theory of liability is based on acceptance of the evidence that Ms. Maglicic repeatedly punched Ms. Patterson. The Crown says that Ms. Maglicic cannot satisfy the second branch of R. v. Khill, 2021 SCC 37, because the evidence establishes beyond a reasonable doubt that Ms. Maglicic’s actions were not for a defensive purpose or to protect herself or another person from the use or threat of force. As a result, the Crown says that a conviction for the included offence of assault would follow.

[41] Mr. Frail’s position is that Ms. Patterson’s version of events is not credible and should not be accepted and that his evidence is a more compelling version of what occurred. On that version, and on the evidence of the witnesses other than Ms. Patterson, Mr. Frail never struck Ms. Patterson and so should be acquitted.

[42] Ms. Maglicic concedes that the injury to Ms. Patterson’s orbital bone falls within the definition of aggravated assault in the Criminal Code of Canada, R.S.C. 1985, c. C-46. However, she says that a reasonable inference can be drawn that Ms. Patterson’s orbital fracture must have been a result of the fall after she and Mr. Frail had walked away.

[43] Ms. Maglicic also concedes that if I accept that events unfolded as described by Ms. Patterson, then Ms. Maglicic’s conduct is criminal conduct. However, she agrees with Mr. Frail’s position that Ms. Patterson’s version of events is not credible and should not be accepted.

[44] Ms. Maglicic argues that the force applied by her to Ms. Patterson, as described by her and Mr. Frail, was in response to what Ms. Patterson was doing to Erica and Mr. Frail and to defend and protect her family. She asserts the amount of force was reasonable and proportionate and was for the purpose of making Ms. Patterson let go of Erica.

[45] Ms. Maglicic says that an air of reality to the defence of protecting another person has been established, shifting the onus to the Crown to negative the defence beyond a reasonable doubt. Ms. Maglicic says the Crown cannot successfully do so, and that s.34 of the Criminal Code justifies the force used by her.

Credibility of the Witnesses

[46] It is evident from the testimony that there is no love lost between Ms. Patterson on the one hand and Ms. Leveille, Mr. Frail, and Ms. Maglicic on the other. Each attempted to testify in a manner that portrayed themselves in the best light. The reliability of Ms. Leveille and Ms. Patterson was impacted by the evidence of drinking leading up to the incident. The credibility of Ms. Patterson, Ms. Leveille, and Ms. Maglicic, and to some extent, Mr. Frail, was called into question. Counsel urged the court to look for selective corroborative evidence from the witnesses to support one version of events or another. This is not a criticism, but the reality of the challenging witnesses counsel were faced with.

[47] Ms. Patterson’s evidence was contradicted in almost every material respect by the evidence of Ms. Leveille, Mr. Frail, and Ms. Maglicic. I have serious concerns with Ms. Patterson’s credibility. There are gaps in her story. Her evidence that she and Ms. Leveille only drank two beers during an evening that lasted up to seven or eight hours is not credible, especially considering that she drank two beers in a very short time before going over to Ms. Leveille’s house. I find that she did not want to acknowledge, as indicated by all the other witnesses, that she drank much more that night.

[48] Ms. Patterson’s evidence that she did not interact with Terry and Erica in the backyard is contradicted by Ms. Leveille’s evidence. Ms. Patterson’s version of how the incident started does not make sense. Her evidence that she was struck with a shoe, out of the blue and for no reason, strains credulity.

[49] Portions of Ms. Patterson’s evidence was not credible. She said knew she was hit with a shoe because she felt the impressions of the shoe treads. She said Erica weighed three times more than her. She agreed that this meant that Erica weighed about 450 pounds at the time. There is other evidence to suggest that Erica weighed less than half that amount. She said at one point that she was fighting with Erica, but her evidence minimized her role in the incident.

[50] Ms. Patterson’s evidence regarding the photographs of herself in hospital was not credible. She said she did not recognize the individual in the photographs because it did not look like her. She was asked to look through the 10 photographs of herself and asked if she recognized anyone. Her answer was, “I don’t really recognize myself”. In the photographs, Ms. Patterson has some blood on her face, a black eye, and a cut over her left eye. Otherwise, the photographs are clearly of her.

[51] Ms. Leveille was at times evasive, unstable, and flighty as a witness. She readily admitted she had been drinking and was drunk. Her credibility was undermined by her prior inconsistent statement on key aspects of her evidence. I have not used the prior consistent statements of Ms. Leveille to corroborate her in-court testimony or to find that they enhance or support her credibility.

[52] Ms. Leveille’s evidence of what occurred after Ms. Maglicic and Mr. Frail arrived is inconsistent with the evidence of the other witnesses. Although Ms. Maglicic and Mr. Frail acknowledged that Ms. Maglicic punched Ms. Patterson at least three times, Ms. Leveille said neither of them hit Ms. Patterson.

[53] For the most part, Mr. Frail answered questions directly and in a forthright manner. He was responsive to questions. His evidence was mostly consistent in-chief and in cross-examination. His credibility was not much affected by his 18-year-old conviction for robbery or subsequent drug offences for which no dates of conviction were given. Mr. Frail’s evidence was consistent with Ms. Patterson and Ms. Leveille’s evidence with respect to Erica hitting Ms. Patterson in the head with a shoe or slip-on sandal and with Ms. Leveille’s evidence about Ms. Patterson falling to the ground and hitting her face on the sidewalk or curb. Mr. Frail’s evidence was also consistent in many respects with Ms. Maglicic’s evidence, down to some small details.

[54] There are issues with Mr. Frail’s evidence which undermine his credibility. His recounting of events was disjointed and vague in places. Notwithstanding the scene he was witnessing involving his daughter, he was reluctant to acknowledge that he was upset at the time. He eventually agreed he was angry. In-chief, Mr. Frail said that Ms. Maglicic punched Ms. Patterson three times in retaliation until she let go of Erica. In cross-examination, he denied it was retaliatory or that he said retaliatory until his answer in-chief was played back to him. When Crown counsel suggested he had already forgotten what he said in-chief, he indicated that he was under a lot of stress and having a hard time with his memory. Prior to that, he gave no indication he was struggling with his memory.

[55] Further, it is difficult to reconcile his evidence that he could see from a few houses away that Ms. Patterson was drunk with his evidence that Ms. Patterson was punched by Terry, was pushed by Ms. Maglicic, punched Mr. Frail twice with such force that he was knocked to his knees, punched Erica in the face three times with enough force to break Erica’s nose, and withstood three punches from Ms. Maglicic, all without falling down. Yet, when no one touched Ms. Patterson, she was so drunk she fell on her own after taking three steps and hit her face on the sidewalk.

[56] Ms. Maglicic was not a credible witness. I have noted some issues with her evidence above. She embellished some answers in cross-examination. She gave a very detailed account of the events of the evening. In cross-examination, Ms. Maglicic agreed that everything she does is calculated. Her evidence had the feel of a theatrical performance, a rehearsed script. She invoked the authority of the “good book” upon which she had taken her oath to justify her actions. In-chief, she suggested that she had to take medication prescribed by her doctor “specifically because of this situation”. In cross-examination, when asked if she still needed to take the medication she said, “as per the legal advice of my counsel, I am perfectly fine to proceed”.

[57] In giving her evidence, both in-chief, but primarily in cross-examination, Ms. Maglicic pontificated, gave speeches, and reprimanded counsel rather than answer straightforward questions. As just one example, in cross-examination, Ms. Maglicic was confronted with having called Ms. Patterson a pedophile. She responded: “We are not going to bring in the justification of the definition of a pedophile in this court considering the situations that are before the courts themselves. That is not the root of this.”

[58] Ms. Maglicic’s seething anger was often observable and palpable throughout her testimony, notwithstanding her denials that she was feeling rage. She was aggressive and evasive, at times simply refusing to answer questions and staring at Crown counsel. It is not hard to see the level of anger and aggression she would have brought to the events of the early morning of August 7, 2018.

The Crown’s First Theory of Liability

[59] I will first assess the Crown’s first theory of liability which relies on a finding that the events unfolded as described by Ms. Patterson.

[60] The Crown relies on R. v. Strathdee, 2021 SCC 40, 463 D.L.R. (4th) 189, with respect to the lack of evidence as to which defendant inflicted the blow that fractured Ms. Patterson’s orbital bone. In reliance on Strathdee, the Crown says that in the context of group assaults, absent a discrete or intervening event, the actions of all assailants can constitute a significant contributing cause to all injuries sustained.

[61] Both defendants reminded the court of the direction of the Supreme Court of Canada in R. v. W.(D.), [1991] 1 S.C.R. 742. My task is not to decide whether I accept the Crown evidence or the defence evidence, as a binary choice or credibility contest. I need not believe exculpatory defence evidence to acquit the defendants. I must acquit if the defence evidence or some portion of it leaves me with a reasonable doubt, or if evidence favourable to the defence in the Crown’s case or the totality of evidence does. I must also consider the liability of each defendant individually.

[62] I am satisfied that the dispute began because of comments made by Ms. Patterson toward Terry. This led to an altercation between Ms. Patterson and Erica. That led to Ms. Patterson being struck in the head by a sandal and some physical contact between Ms. Patterson and Erica.

[63] As noted, I have concerns about the credibility of Ms. Patterson, Ms. Leveille, and the defendants. I also have concerns about the reliability of Ms. Patterson and Ms. Leveille. Ms. Patterson told one version of events of what happened after the defendants arrived on scene. Ms. Leveille told another. The defendants gave a third version of events.

[64] I do not accept as credible Ms. Patterson’s evidence that in Ms. Leveille’s backyard she only had two beers. The evidence as to Ms. Patterson’s intoxication is somewhat contradictory. Ms. Leveille and Mr. Frail said Ms. Patterson was drunk, unsteady, wobbling, and could not stand straight. Mr. Frail’s evidence was that despite being struck, pushed, punched, and punching others, Ms. Patterson did not fall down. Even Ms. Maglicic’s evidence was that after punching Ms. Patterson four times, Ms. Patterson did not fall. In fact, Ms. Maglicic said that it was Erica who stumbled and Ms. Patterson, who was still holding onto her, stumbled as well. I am not able, from the evidence, to determine Ms. Patterson’s level of intoxication.

[65] Ms. Patterson’s evidence that she was beaten and kicked, not just on her face, but on her body was contradicted by the other witnesses. There was no evidence of any bruising or injuries to anything other than her face, notwithstanding Ms. Patterson’s evidence that the blows rained down on her for 10 or 15 minutes. This observation is not significantly impacted if Ms. Patterson was mistaken about how long the alleged assault lasted and if, in fact, it was much less than 10 minutes.

[66] There is evidence from Mr. Frail, Ms. Maglicic, and Ms. Leveille that Ms. Patterson fell and struck her face on the sidewalk and curb. If so, the injury to her orbital bone may have been a result of the fall.

[67] The totality of the evidence leaves me in a reasonable doubt about whether the defendants kicked and punched Ms. Patterson while she was curled up on the ground and caused the injury to her orbital bone. I find therefore, that the Crown has not met its burden on the aggravated assault charge, and I find the defendants not guilty of aggravated assault.

The Crown’s Second Theory of Liability

[68] On the included offence of simple assault, the Crown bears the burden of proving beyond a reasonable doubt that:

i. the defendants intentionally and unlawfully applied force to Ms. Patterson; iii. Ms. Patterson did not consent to the force they applied; and iv. they knew that Ms. Patterson did not consent to the force that they applied.

[69] My comments above with respect to W. (D.), and considering the liability of each defendant individually, apply here as well.

[70] The Crown has not established these elements beyond a reasonable doubt with respect to Mr. Frail. The Crown did not argue that it had. Ms. Patterson gave no evidence that she was struck by Mr. Frail other than her evidence about being kicked and punched while curled up on the ground. As noted, I am left in a reasonable doubt as to whether this occurred. Mr. Frail’s evidence is that he did not strike Ms. Patterson. This is supported somewhat by Ms. Leveille’s evidence. As a result, I am left in a reasonable doubt that Mr. Frail applied force to Ms. Patterson and I find Mr. Frail not guilty of the included offence of assault.

[71] Ms. Maglicic did not strenuously argue that an assault was not made out. Rather, Ms. Maglicic relies on s.34 of the Criminal Code and asserts she was acting in defence of another person.

[72] It is clear that Ms. Maglicic intentionally punched Ms. Patterson. Mr. Frail testified that Ms. Maglicic punched Ms. Patterson three times in the face. At another point, he testified that Ms. Maglicic punched Ms. Patterson once in the shoulder, once in the jaw, and once to the side of the head. Ms. Maglicic readily admits punching Ms. Patterson a total of four times.

[73] There is no evidence of voluntary agreement on the part of Ms. Patterson to being punched by Ms. Maglicic. Considering all the evidence of what happened between Ms. Patterson, Erica, and Ms. Maglicic, I am satisfied beyond a reasonable doubt that Ms. Patterson did not consent to the force applied by Ms. Maglicic and that, at a minimum, Ms. Maglicic was aware of the risk that Ms. Patterson did not consent and intentionally punched Ms. Patterson.

[74] Section 34(1) of the Criminal Code provides as follows:

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

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

[75] These three inquiries can be conceptualized as (1) the catalyst; (2) the motive; and (3) the response: see Khill, at para. 51.

[76] The Crown need only prove beyond a reasonable doubt that one of the elements of self-defence is absent for this defence to fail. The Crown only made submissions with respect to the second element of the defence – the motive.

[77] The Crown says it has proved beyond a reasonable doubt that these punches were not for the purpose of defending or protecting another person from Ms. Patterson. The Crown relies on paras. 59 and 60 in Khill:

[59] The second element of self‑defence considers the accused’s personal purpose in committing the act that constitutes the offence. Section 34(1)(b) requires that the act be undertaken by the accused to defend or protect themselves or others from the use or threat of force. This is a subjective inquiry which goes to the root of self‑defence. If there is no defensive or protective purpose, the rationale for the defence disappears ( see Brunelle v. R., 2021 QCCA 783, at paras. 30-33; R. v. Craig, 2011 ONCA 142, 269 C.C.C. (3d) 61, at para. 35; Paciocco (2008), at p. 29). The motive provision thus ensures that the actions of the accused are not undertaken for the purpose of vigilantism, vengeance or some other personal motivation.

[60] The motive provision also distinguishes self‑defence from other situations that may involve the excusable or authorized application of force by an accused, such as preventing the commission of an offence (s. 27), defence of property (s. 35) or citizen’s arrest (s. 494). Clarity as to the accused’s purpose is critical, as the spectrum of what qualifies as a reasonable response may be limited by the accused’s purpose at any given point in time. The range of reasonable responses will be different depending on whether the accused’s purpose is to defend property, effect an arrest, or defend themselves or another from the use of force.

[78] The Crown also relies on paras. 17 and 18 of the decision of the Court of Appeal for Ontario in R. v. Foster, 2019 ONCA 282:

[17] The trial judge, at para. 19 of her reasons, correctly identified the three elements of self-defence under s. 34 of the Criminal Code. Ultimately, after a review of the evidence and a reasoned assessment of that evidence, the trial judge concluded that the appellant became “enraged” in the course of an altercation with Mr. Lavery and slashed him with the X-Acto blade “in an act of aggression”. Acts of aggression are the antithesis of acts taken for a “defensive purpose”, one of the elements of a s. 34 defence.

[18] The appellant submits that the trial judge failed to consider the appellant’s “subjective perceptions” at the time he slashed Mr. Lavery. With respect, a finding that the appellant had become “enraged” is a finding of the appellant’s subjective state of mind. That finding belies the appellant’s claim that he acted in fear, or based on a perceived need to protect himself or his girlfriend. The trial judge made no error in her consideration of the defence of self-defence.

[79] This branch of the defence is a subjective inquiry. The Crown says that Ms. Maglicic’s own evidence as to why she punched Ms. Patterson three times supports the conclusion that she punched Ms. Patterson, not for a defensive purpose, but for retaliation, vengeance, or some other personal motivation. The Crown says that there is evidence that establishes that Ms. Maglicic was enraged at the time and punched Ms. Patterson as an act of aggression, revenge, or to teach her a lesson or send her a message, which is not a defensive purpose under s.34. The Crown also points to the evidence of Mr. Frail who described the punches as retaliation rather than to free Erica from Ms. Patterson. Finally, the Crown notes that when describing why she punched Ms. Patterson, Ms. Maglicic did not say it was to protect Erica from Ms. Patterson.

[80] Ms. Maglicic asserts that her description of the reasons why she punched Ms. Patterson were “poetic licence”, but that her real motive was to defend her daughter and family and that the force was reasonable and proportionate. She asserts that once Ms. Patterson let go of Erica, she stopped punching her and that this supports her motive of defence of Erica. I do not accept this submission.

[81] I set out again Ms. Maglicic’s evidence of what she did when she punched Ms. Patterson:

Because she hit Erica three times, I hit her three times. Once in the shoulder, because she hit my daughter. Once in mouth because of the vulgarities that she was screaming and what the whole ordeal was about, which was Lindsay Patterson wanting to performing fellatio on Terry Leveille. And the third one in the side of the head for her being stupid on hitting my 16-year-old daughter and my husband, Mr. Frail, who is on disability for mental health.

[82] Ms. Maglicic did not say during this explanation that she struck Ms. Patterson to make her let go of her daughter or to protect her. Her motivation for why she punched Ms. Patterson is clearly spelled out in her own words. At other points of her testimony, she asserted that she was protecting her family. I do not accept this evidence. Before punching Ms. Patterson, she testified she had pushed her. Right after punching Ms. Patterson three times, Ms. Maglicic said that Ms. Patterson still had hold of Erica’s hair bun and Erica punched Ms. Patterson and then Ms. Patterson turned and hit Erica again. Ms. Maglicic said she then punched Ms. Patterson in the shoulder and screamed at her “let go of my child”. This seemed to have caused something to happen because the next part of the story as recounted by the defendants is that Ms. Patterson is on the ground being restrained by Ms. Maglicic.

[83] I am aware that the cases which rely on the comments of the Court of Appeal in Foster that acts of aggression are the antithesis of acts taken for a “defensive purpose” can be factually distinguished in various ways from the present case. That does not limit the applicability of the principle. I have no doubt, having watched Ms. Maglicic testify and having heard her own explanation for why she specifically punched Ms. Patterson three times, that she was acting out of aggression and anger and with a specific purpose of vengeance and to punish Ms. Patterson for her “vulgarities” and “for being stupid”. I do not accept Ms. Maglicic’s explanations to the contrary.

[84] As a result, I find that the Crown has established beyond a reasonable doubt that Ms. Maglicic did not punch Ms. Patterson the three times (in the shoulder, mouth, and head) for the purpose of defending or protecting Erica from the use or threat of force. As a result, the s.34 defence of another person fails.

[85] There is another argument advanced by the Crown which the Crown noted it was not seriously pursuing. The Crown concedes that it would be difficult to find beyond a reasonable doubt that Ms. Maglicic’s punches caused the injury to Ms. Patterson’s orbital bone. However, the Crown submits that it is open to me to find that it is reasonably foreseeable that punches to Ms. Patterson’s head would make her disoriented, and any natural consequences of that, such as falling and breaking her orbital bone, is a reasonably foreseeable consequence of the blows. However, the Crown also concedes that it is equally open to me to find that Ms. Patterson’s falling was an intervening act and the chain of causation was broken.

[86] The evidence does not allow me to find beyond a reasonable doubt that Ms. Patterson fell and broke her orbital bone as a result of Ms. Maglicic’s punches, although that it is a possibility. Further, given the evidence that Ms. Patterson was first pinned on the ground, and then sitting on the ground, and the evidence that she was intoxicated, I cannot find that a fall and a broken orbital bone was a foreseeable consequence of the three punches to Ms. Patterson.

[87] In the result, I find Ms. Maglicic guilty of the included offence of simple assault pursuant to s.266 of the Criminal Code.

M. Bordin, J.

Released: May 14, 2024