Reasons for Judgment

Court File No.: CR-23-30000503
Date: 2025-06-24
Ontario Superior Court of Justice

Between:
His Majesty the King
and
Alexander Campbell & Tyler Josling, Defendants

Appearances:
Andrew Pilla, for the Crown
Peter Thorning, for the Defendant Alexander Campbell
Marco Sciarra and Samantha Kettner, for the Defendant Tyler Josling

Heard: May 5-7, 12-14, 2025

Dineen J.

Introduction

[1] The defendants Alexander Campbell and Tyler Josling are charged with manslaughter arising from the tragic death of Frank Harbalis on July 11, 2022. Mr. Campbell and Mr. Josling were patrons of a restaurant who came upon Mr. Harbalis attacking restaurant staff. They intervened to stop him and, together with two staff members, restrained Mr. Harbalis for about 10 minutes before the authorities began to arrive, at which point he was unconscious with fading vital signs. He died in the hospital two days later. His death was caused by neck compression that either asphyxiated him by cutting off the blood to his brain or contributed to a sudden cardiac failure in combination with the stress of the events and pre-existing heart abnormalities and disease.

[2] This trial turns on the issue of whether the defendants used any force that contributed to Mr. Harbalis’s death and that was not within the scope of lawful self-defence and the defence of others. The Crown contends that in the course of restraining Mr. Harbalis, Mr. Campbell used excessive force by placing him in a chokehold while Mr. Josling encouraged him to “put him to sleep.” The Crown further contends that their motivation was not purely defensive, but reflected a wish to punish Mr. Harbalis for perceived mistreatment of a bartender some minutes earlier. The position of Mr. Campbell is that any force he applied was defensive and reasonable. Mr. Josling disputes that he did anything with the purpose or effect of encouraging unreasonable force.

Summary of the Evidence

The Setting and Participants

[3] The events that gave rise to this charge took place at a Jack Astor’s restaurant at the Scarborough Town Centre on July 11, 2022. This restaurant has extensive surveillance cameras that recorded many of the background events.

[4] Mr. Harbalis can be seen arriving shortly before 1:30 p.m. He appears to have remained drinking beer in the restaurant over the course of several hours. Mr. Campbell and Mr. Josling arrived together around 6:20 p.m. They sat together at the bar and ordered two shots and a pitcher of beer. Mr. Harbalis was 32 years old, 6’2 and 275 pounds at this time. Mr. Campbell was approximately 6’0 tall and 190 pounds and Mr. Josling 5’9 and 160 pounds. Mr. Campbell and Mr. Josling appear to have been in their 20s. There is no suggestion that they had ever encountered Mr. Harbalis before.

Mr. Harbalis’s Interaction with Aliki Kavouras

[5] Ms. Kavouras was working as a bartender at the restaurant on July 11 on the evening shift. When she arrived, Mr. Harbalis already had a beer and she soon served him another. She then began to develop concerns about his behaviour. She noticed him wandering around talking to strangers in a way that struck her as unusual. He also helped himself to fruit from the bar and asked for her name repeatedly, seemingly unable to remember it. She determined that she would no longer serve him.

[6] When she was dealing with the payment of his bill, Mr. Harbalis reached over the bar and made contact with her hair. This event is visible on the surveillance video. Mr. Campbell and Mr. Josling were sitting nearby at the bar and appear to have watched this take place. Ms. Kavouras told Mr. Harbalis that he needed to pay and leave.

[7] When told to settle up his bill, Mr. Harbalis realized he did not have his wallet and went to retrieve it from the patio. According to Ms. Kavouras, by the time he returned he had forgotten that he had not yet paid. He can be seen paying in cash on the video. He wished to make a phone call but said that his phone battery was too low and Ms. Kavouras agreed to charge it just long enough to permit him to make a phone call to arrange for his departure. He then left again towards the patio.

[8] Ms. Kavouras testified that after Mr. Harbalis left, Mr. Campbell and Mr. Josling asked her if she was OK and she told them that she was. The men expressed the view that Mr. Harbalis should not be touching her and that it “wasn’t right.”

[9] Once on the patio, Mr. Harbalis left the restaurant grounds shortly before 6:30 p.m. by climbing over a glass wall which appears to be at least seven feet high. This was observed by restaurant staff and quickly became the subject of discussion in the restaurant. Ms. Kavouras believed that Mr. Campbell, who can be seen on video briefly going to the patio at this time, may have been the person who reported it to her. At around this time, Mr. Campbell and Mr. Josling got up from the bar and went in the direction of the washrooms.

Mr. Harbalis’s Return to the Restaurant and the Beginning of the Altercation

[10] Trevor Jaijairam was a floor manager of this Jack Astor’s location. He was scheduled to work the final shift that day. He arrived in the late afternoon to take over from Inzan Ali, who had worked the afternoon shift. Mr. Jaijairam was told by staff that a patron had tried to touch Ms. Kavouras inappropriately and had left the restaurant by jumping over the fence. He was also given a cell phone that he was told had been left behind by this patron.

[11] Mr. Harbalis returned to the front entrance of the restaurant at 6:31 p.m. seeking his cell phone. Mr. Jaijairam took it to him and the two men engaged in a conversation beginning at the host stand and then moving to a location just inside the front doors. They appear at first to be conversing calmly on the video.

[12] Mr. Jaijairam did not recall many details of their conversation. He believes that he was attempting to persuade Mr. Harbalis to leave and that the conversation was progressing in that direction. He also believes that Mr. Harbalis wished to complain about his experience in the restaurant.

[13] The surveillance video shows that while they were speaking, Mr. Harbalis suddenly punched Mr. Jaijairam in the face with considerable force. Mr. Jaijairam was leaning against the wall with a relaxed posture and appears to have been totally unprepared for this blow. He testified that Mr. Harbalis had not appeared angry before this and it was like a switch being flipped.

[14] Mr. Jaijairam reeled backwards in response to this blow and touched an earpiece, seemingly to call for help. Mr. Harbalis continued to pursue Mr. Jaijairam by throwing further punches in his direction. Mr. Jaijairam recalls Mr. Harbalis calling him a “faggot.” Mr. Jaijairam quickly retreated out of the view of the front entrance security camera. The next phase of the physical altercation was only captured in the background of video taken by relatively distant cameras above the bar and is much harder to see.

[15] Mr. Jaijairam testified that he twice pushed Mr. Harbalis away as he was pursued. It appears on the video as though Mr. Harbalis fell to the ground as a result and then rose again and continued to chase Mr. Jaijairam. Mr. Jaijairam believed Mr. Harbalis hit a table when he fell. Other staff members, including Mr. Ali, quickly began running towards the altercation.

[16] Mr. Harbalis picked up a chair and swung it in the direction of Mr. Jaijairam and Mr. Ali, who had by then arrived to assist. The chair struck Mr. Ali in the head. Mr. Ali testified that the blow did not catch him with full force, but it made him dizzy. Immediately after the blow from the chair, Mr. Campbell and Mr. Josling can be seen on the video rushing in and tackling Mr. Harbalis to the floor as Mr. Harbalis appears to continue attempting to swing the chair. Mr. Campbell and Mr. Josling came from the direction of the washroom area where they had apparently gone shortly before the fight.

The Struggle on the Floor

The Witnesses Directly Involved

[17] A prolonged struggle then ensued between Mr. Harbalis on one side and Mr. Jaijairam, Mr. Ali, Mr. Campbell, and Mr. Josling on the other. This struggle ended approximately ten minutes later with Mr. Harbalis unconscious with no vital signs. None of this strugglewas captured on video because the floor is obstructed in the surveillance videos that cover the area of the restaurant where this took place.

[18] The only witnesses who gave evidence about the entire course of the struggle were Mr. Jaijairam and Mr. Ali. They both testified that their role at the restaurant did not involve security or breaking up fights and they had no training and little or no experience in how to handle a physical assault like the one they experienced. They both agreed on the general positioning of the five men for the majority of the period where Mr. Harbalis was on his stomach on the floor. They testified that during this time Mr. Jaijairam was at Mr. Harbalis’s feet, Mr. Ali was at his lower back and attempting to hold his right arm, Mr. Josling was on the left side of his upper body holding his left arm, and Mr. Campbell was at the top of his body towards his head and neck.

[19] Shortly after he was first taken to the ground by the four men, Mr. Harbalis managed to get up to his knees and shrug off their restraint. They forced him back down and held him more forcefully at this point.

[20] Both Mr. Jaijairam and Mr. Ali testified that Mr. Harbalis continued to resist and struggle to get up throughout the roughly ten minutes that the four men held him down. Mr. Jaijairam could not initially recall if he ever ceased these movements but testified in cross-examination that whenever Mr. Harbalis would seem to relax and the men began to ease their pressure he would begin to struggle again. Mr. Ali testified that he continued to struggle until abruptly ceasing seconds before firefighters arrived on the scene, with the men standing and leaving him once he stopped resisting.

[21] Mr. Jaijairam was not able to see from his position exactly what Mr. Campbell and Mr. Josling were doing. Mr. Ali described seeing Mr. Campbell on the right side of Mr. Harbalis’s upper body. His right arm, shoulder, and leg were underneath Mr. Harbalis. In examination in-chief, he recalled that Mr. Campbell had his left arm wrapped around Mr. Harbalis’s neck. In his police statement, Mr. Ali characterized this as a “chokehold” that he observed briefly at the beginning of the struggle, but he did not adopt this characterization at trial. He testified that he has since come to believe from watching UFC fights that a “chokehold” capable of rendering someone unconscious would require Mr. Campbell to have linked his hands together and he did not observe this. In cross-examination he seemed to suggest that the arm he saw was around the shoulder rather than the neck.

[22] At one point during the ten minutes when Mr. Harbalis was being restrained, Mr. Ali went to retrieve a telephone wire to try to use it to tie Mr. Harbalis’s arms. This was unsuccessful and was followed by a similarly ineffective attempt to use the wire to secure his legs.

[23] Mr. Jaijairam could not recall many words that may have been spoken during this time. He may have told Mr. Harbalis to “stop” and believes that he thanked Mr. Campbell and Mr. Josling for their help.

[24] Mr. Ali also recalled few specifics of what was said during this time. He thought Mr. Campbell told him “you’re pressing on me” when he accidentally kneeled on part of Mr. Campbell’s body, and also believed Mr. Campbell said that Mr. Harbalis was pinching him at one point. He recalled saying “calm down, there’s four people on top, why resist” or words to that effect to Mr. Harbalis. He also asked where security was.

[25] Mr. Jaijairam did not see anyone strike Mr. Harbalis or do anything other than try to hold him down. He and Mr. Ali both testified that they saw no indication that Mr. Harbalis was injured or suffering any physical distress.

The Eyewitnesses

[26] The Crown called seven witnesses who observed at least part of the struggle on the floor or heard words spoken from that direction. Some were customers at the restaurant and others were staff members. I will review their evidence individually beginning with the customers.

(i) Adrian Raghubeer

[27] Mr. Raghubeer is the most important witness for the Crown’s theory of the case. He was sitting at a table with two former colleagues when the altercation began. They were seated just on the other side of a roughly five-foot high wall from the area where Mr. Harbalis came to be restrained.

[28] The first thing Mr. Raghubeer recalled seeing after hearing a commotion was Mr. Harbalis using a chair to fend off three men pursuing him. The three men took Mr. Harbalis to the ground and Mr. Raghubeer walked over to the railing to observe. He testified that he observed the events on the ground for two separate time periods, in between which he stepped away for a time. During his first period of observation, the three men were holding Mr. Harbalis down. During his second period of observation, only two men were doing so, with one holding him in a chokehold. He believes he observed this for a period of minutes. The second man was saying “put him to sleep” and lifting Mr. Harbalis’s left arm and letting it drop in what I interpreted as an apparent attempt to see if Mr. Harbalis was still conscious. This took place more than once and Mr. Harbalis appeared motionless the entire time. Mr. Raghubeer was concerned that Mr. Harbalis was unconscious or not breathing and needed medical assistance and placed a 9-1-1 call to alert the authorities.

[29] The surveillance video shows that Mr. Raghubeer’s memory about this timeline is not entirely accurate. He can be seen walking over to a spot with a view of events immediately after Mr. Harbalis swung the chair and watching what was taking place for a period of about one minute and 20 seconds. He then stepped away and spoke briefly to a manager of the restaurant and returned to his table for about two minutes. He then can be seen placing a phone call and walking swiftly out of the restaurant before returning to his table about four minutes later and remaining there until paying his bill and leaving shortly after the arrival of the firefighters. He cannot be seen looking at the struggle at any time except the initial approximately 80 seconds.

(ii) Paul Cosgrove

[30] Mr. Cosgrove attended the restaurant that evening with his son. As they walked in, they passed by Mr. Harbalis being asked to leave by Mr. Jaijairam. They then sat at the bar. He heard a commotion and turned around and saw Mr. Harbalis pick up a chair and swing it, striking a staff member with a glancing blow in the head or shoulder. Mr. Cosgrove approached as the struggle ensued. He saw Mr. Harbalis initially on his side almost face up and then turned onto his stomach. Mr. Campbell and Mr. Josling were on top of Mr. Harbalis. There was a great deal of yelling and screaming, particularly from Mr. Harbalis, but he could not recall any specific words spoken. He was soon asked by a staff member to go back and sit down and he did so. The video shows that he and his son watched for about a minute at the outset of the struggle. Things quieted down after this point.

[31] From his observations of Mr. Harbalis, Mr. Cosgrove thought he might be very intoxicated by alcohol or possibly drugs or suffering from some sort of mental instability.

[32] He recalled speaking to Ms. Kavouras about their observations after the incident but before the police took statements. In cross-examination he was shown surveillance video appearing to depict him and his son speaking to another patron about the events as well. He had no recollection of this conversation.

(iii) Evan Cosgrove

[33] Mr. Cosgrove’s son Evan also testified that he walked over to observe the struggle after hearing sounds of a fight. Evan said that he saw four or five people holding down a single person. He saw two persons he recognized from the bar go to assist the Jack Astor’s staff. He recalled loud voices but not what was said. He had the impression that the situation was being handled poorly by the staff and was out of hand. He and his father returned to their seats when asked to do so.

[34] Like his father, he had no recollection of discussing the events with another patron after the fact but agreed that the video appears to show this taking place.

(iv) Keara Guay

[35] Ms. Guay was sitting with an old colleague in a booth relatively close to the restaurant entrance when she observed Mr. Jaijairam walk over to interact with Mr. Harbalis by the host station. She saw the two men physically engage with each other right next to her booth. She testified that this happened very quickly. In her view, the men initially appeared to be “play fighting.” The fight then moved into a more distant part of the restaurant. She saw Mr. Harbalis pick up a chair before others came in to hold him down and stop him from fighting. While she did not recall this initially, the video shows that Mr. Harbalis fell directly at her feet when he was first pushed away by a fleeing Mr. Jaijairam.

[36] Ms. Guay did not have a view of the struggle on the ground, but while a crowd was around that area she heard someone say “that will teach you for mistreating a woman” and later someone said “put him to sleep.” She could not say whether these things were said by a participant in the struggle or by a spectator. The scene then quieted down for a short time before firefighters arrived and she noticed people performing CPR.

[37] Ms. Guay testified that after these events and before she gave a police statement, she spoke about what had happened with her colleague and with a woman she encountered in the washroom. She agreed in cross-examination that she cannot now remember what she saw and heard as opposed to what her colleague had described seeing and hearing.

(v) Aliki Kavouras

[38] Ms. Kavouras said the first part of the altercation that she saw was a chair being swung at Mr. Ali. She can be seen on video rushing towards the struggle and watching from close range for about two minutes.

[39] Ms. Kavouras testified that her memory of what happened is not good and that she tries not to think about it because it was one of the worst experiences of her life.

[40] She remembers Mr. Harbalis on the floor surrounded by Mr. Ali, Mr. Jaijairam, Mr. Campbell, and Mr. Josling. She believed the latter two were on the upper part of Mr. Harbalis’s body. She remembers people yelling but cannot recall any words that were spoken. Mr. Harbalis was trying to get up and the other men were trying to hold him down. She recalled him being face up. One of Mr. Campbell and Mr. Josling was holding him by the neck to try to hold him down, but she did not remember who specifically.

[41] Ms. Kavouras initially testified that Mr. Harbalis never stopped trying to get up while she was watching. When her memory was refreshed with her evidence from the preliminary inquiry, she recalled a couple of occasions where he momentarily stopped moving and then resumed struggling. She testified that he was mostly fighting back. The men were moving around constantly during the time she was observing.

(vi) Ameika Walters

[42] Ms. Walters was working as a server on July 11, 2022. She was by the service area of the restaurant when the altercation broke out. She tried to move the people in her area out of the way and then saw Mr. Harbalis on his stomach flailing and being held down by Mr. Jaijairam, Mr. Ali, and two customers. She recalled that the customers were on the lower half of his body and that Mr. Jaijairam was at his arms and head.

[43] Ms. Walters was moving back and forth for the 10-15 minute period when the men were on the floor. At some point she heard someone say something like “don’t touch a woman” but this is foggy in her mind. She cannot recall who said this. While she told the police that it was a grey-haired man in his 50s, she no longer thinks that was accurate. She believes she heard these words perhaps four minutes after the altercation began but is not sure.

[44] She agreed in cross-examination that she spoke to Ms. Kavouras after these events and before the police arrived and that Ms. Kavouras described her interaction with Mr. Harbalis and having patrons of the restaurant offer support. It is possible that the words she remembers were something Ms. Kavouras had described and that she was piecing it together in her mind and did not herself hear them during the struggle.

(vii) Julia McDonald

[45] Ms. McDonald was also working as a server on the day in question. She first saw Mr. Harbalis when she served him a beer at around 4:30 p.m. at the start of her shift. She next remembers seeing him much later when she heard yelling of some sort and then saw him running through the cocktail area when she recalled that he was being chased by Mr. Ali and Mr. Jaijairam. He picked up a chair and the two managers took the chair from him and started restraining him. Mr. Campbell and Mr. Josling, who appeared to be coming from the washrooms, helped them hold Mr. Harbalis down.

[46] Ms. McDonald was not paying close attention to the ongoing restraint and recalled being confused about its long duration. She was preoccupied by the fact that families with children were in her section. She walked close by a few minutes after the initial altercation to retrieve menus but averted her eyes and remembers only that Mr. Harbalis was face down and a shoe had come off.

[47] She recalled hearing two things said: “you shouldn’t put your hands on a woman” and something along the lines of “go to sleep” or “you need to go to sleep.” She believes she heard these things before she walked past the struggle but is not sure. While in her police statement she attributed these statements to the two customers helping Mr. Jaijairam and Mr. Ali, she no longer has a present recollection of who said them. She acknowledged in cross-examination that her memory independent of her statement is poor and that there was general discussion among the staff about what had happened in the immediate aftermath of these events.

Events After the Arrival of Emergency Services

[48] Firefighters were the first emergency services personnel to enter the restaurant. They can be seen arriving on the surveillance videos at 6:47 p.m. Matthew van Warmerdam was the first firefighter to attend to Mr. Harbalis. He found him face down and unresponsive. Nobody was around him. Mr. van Warmerdam believed he detected a faint pulse. After rolling Mr. Harbalis over he was unable to locate a pulse and Mr. Harbalis appeared to be dead. He and others began CPR. This continued for 14 minutes. Their defibrillator was unable to detect a pulse during this time.

[49] Paramedics arrived and took over Mr. Harbalis’s care. Shortly after this a pulse and vital signs were detected. They took Mr. Harbalis by stretcher to an ambulance at which point his pulse ceased and they resumed CPR and administered epinephrine. A pulse was detected again at the hospital, but Mr. Harbalis died there two days later.

[50] Mr. Campbell and Mr. Josling received shirts from the Jack Astor’s staff because they had sweat through their own shirts during the struggle. Mr. Josling is visibly upset on the video afterwards. Ms. Guay described both defendants as angry at this time, but Paul Cosgrove perceived Mr. Josling as distraught and being consoled by Mr. Campbell.

The Evidence of Dr. Pollanen

[51] The autopsy was conducted by Dr. Dan Smyk. Dr. Smyk was not available to testify at trial and so his findings were independently reviewed by Dr. Michael Pollanen, the chief forensic pathologist of Ontario. Dr. Pollanen testified about his conclusions at trial.

[52] In addition to significant bruising on the torso and limbs indicative of a struggle, the autopsy revealed what Dr. Pollanen identified as the classic hallmarks of neck compression: petechial hemorrhages of the eyes, bleeding in the muscles of the neck, and fractures of the hyoid bone and the cricoid cartilage. There was no externally visible injury to the skin of the neck and so Dr. Pollanen concluded that the neck compression was most likely to have been a broad compressive force to the front and sides of the neck. He identified this neck compression as the cause of death.

[53] Dr. Pollanen testified that there were two possible ways the neck compression may have caused Mr. Harbalis’s death. The first is through asphyxiation by obstructing blood flow from the carotid arteries in the neck to the brain. Dr. Pollanen testified that it would take a “small number of minutes” of obstructed blood flow to cause death in this way.

[54] The second possibility is that the neck compression caused Mr. Harbalis to suffer a sudden cardiac arrest. This could have resulted from even a brief period of neck compression, and even the application of a blunt force to the neck could not be ruled out. This possibility arose because the autopsy showed that Mr. Harbalis had an abnormally enlarged heart and apparent chronic heart disease from uncontrolled high blood pressure. He would have been vulnerable to rhythmic abnormalities in the electric system of the heart that could lead to sudden cardiac death. Mr. Harbalis was also taking a medication that has been associated with sudden cardiac death as a potential side effect.

[55] These heart abnormalities meant that Mr. Harbalis was at risk of sudden heart failure even in the absence of any injury. As a result, the apparent neck compression or injury may simply have been a contributing factor together with stress on the heart from the ongoing struggle in triggering Mr. Harbalis’s pre-existing heart conditions to stop his heart. If this happened, he would immediately cease to be able to struggle. There can though be small movements including seizures, gasping, or jerking in the extremities shortly after death.

[56] There is no way to medically conclude that either of these two possible mechanisms of death is more likely than the other.

The Applicable Legal Principles

[57] To obtain convictions for manslaughter, the Crown must prove beyond a reasonable doubt that Mr. Campbell caused Mr. Harbalis’s death by an unlawful act from which a reasonable person would foresee bodily harm, and that Mr. Josling was a party to this act by encouraging or assisting it.

[58] The unlawful act must be a non-trivial contributing cause of the death but need not be the direct or most significant cause. If an unlawful act contributed to Mr. Harbalis suffering sudden cardiac failure because of his heart abnormalities and disease, it would not be a defence that the unlawful act may not have caused death in a person of normal health.

[59] It is not disputed that both Mr. Campbell and Mr. Josling applied force to Mr. Harbalis that would ordinarily be unlawful and as I understand it, it is not seriously disputed that the restraint they applied contributed in a non-trivial way to his death. The central issue is whether the Crown has proven beyond a reasonable doubt that they were not acting in self-defence or the defence of others.

[60] The statutory defence of self-defence was simplified by Parliament in 2013 with the enactment of the current s. 34(1) of the Criminal Code. It has three elements, which the Supreme Court of Canada has described as an inquiry into the accused person’s actions by considering the catalyst for those actions, the motive for them, and the nature of the accused person’s response: R. v. Khill, 2021 SCC 37 at para. 51.

[61] The first element requires that the accused believe on reasonable grounds that force was being used or threatened against them or another person. This element is not controversial at this trial.

[62] The second element requires that the accused took the action underlying the alleged offence for the purpose of protecting themselves or others from the use or threat of force. This element distinguishes a defensive purpose from vigilantism, vengeance, or other personal motivations.

[63] The final element requires that the accused’s act have been “reasonable in the circumstances.” The Criminal Code sets out a non-exhaustive list of factors to be considered including the nature and imminence of the threat, the accused person’s role in the incident, and the nature and proportionality of the response. This is a broad inquiry that considers what a reasonable person with the same general characteristics of the accused would do in the particular circumstances the accused confronted.

[64] The standard of reasonableness is not a standard of perfection. The law has always recognized that people in stressful and dangerous situations do not have time for careful reflection and can reasonably make mistakes about the nature of the threat they face and the amount of force necessary to defend themselves: R. v. Mohamed, 2014 ONCA 442; R. v. Cunha, 2016 ONCA 491.

[65] The Supreme Court of Canada has very recently considered how to assess the dangerousness of chokeholds when considering the issue of self-defence in a manslaughter prosecution with significant factual similarities to this case. The Court found that there is no generally applicable legal rule that a trier of fact must apply about the dangerousness of chokeholds. Each case must be assessed on its own facts and the dangerousness of a chokehold may vary based on factors such as its nature, force, and length. See R. v. Hodgson, 2024 SCC 25 at paras. 59-64.

Application to the Facts

s. 34(1)(a) – The Catalyst

[66] As I have said, it is not controversial that Mr. Campbell and Mr. Josling first used force in response to the threat Mr. Harbalis posed to others. It is obvious from the video that they would have seen him swing a chair and hit Mr. Ali in the head. Their assistance in tackling Mr. Harbalis prevented him from continuing to behave violently. Once he was on the ground, there is nothing in the evidence suggesting that it was unreasonable to perceive that he would represent a continuing threat if he was able to get up again. This element of the defence of self-defence is satisfied.

s. 34(1)(b) – The Motive

[67] The Crown contends that at some point, the purpose of the force employed by the defendants shifted from a defensive one to a punitive one. The basis of this argument is the evidence from three witnesses who reported hearing a comment during the restraint seemingly about Mr. Harbalis having touched Ms. Kavouras.

[68] The strongest version of this came from Ms. Guay who recalled hearing “that will teach you for mistreating a woman.” Similar evidence came from Ms. Walters who recalled something like “don’t touch a woman” and Ms. McDonald who recalled “you shouldn’t put your hands on a woman.” The Crown notes that the defendants saw Mr. Harbalis touch Ms. Kavouras’s hair earlier and had expressed their disapproval of this act to Ms. Kavouras in similar terms. Mr. Pilla submits that they were the obvious persons in the struggle to have used these words and that this demonstrates a state of mind inconsistent with self-defence.

[69] For a number of reasons, I am not satisfied that Mr. Campbell or Mr. Josling had any non-defensive purpose in applying force to Mr. Harbalis.

[70] None of the witnesses who reported hearing this comment had a particularly strong memory. Ms. Guay’s version would be the most suggestive of a non-defensive purpose but I cannot find that she was accurate in her evidence that she heard words to the effect of “that will teach you.” No other witness heard this and her evidence was substantially weakened in cross-examination when she conceded that she was not sure what she heard first-hand during this event and what she was told by others afterwards.

[71] Assuming that something was said about Mr. Harbalis touching Ms. Kavouras, I find that I cannot attach real significance to it without reliable evidence of exactly what was said and whether or not there was any relevant context.

[72] I do not wish to be taken to be minimizing the importance of respecting the bodily integrity of women. Nonetheless, the surveillance video and Ms. Kavouras’s testimony about what happened suggest that the touching of her hair was a relatively insignificant event. This is particularly so when compared to Mr. Harbalis’s later behaviour. It seems unlikely to me that this event played any major role in Mr. Campbell or Mr. Josling’s motivations.

[73] The video shows that the two men watched the interaction between Mr. Harbalis and Ms. Kavouras with interest and possibly concern, and Ms. Kavouras reported that they checked whether she was OK after the fact. This strikes me as a reasonably proportionate response to what Ms. Kavouras herself perceived as a minor incident. There is no evidence that either man tried to speak to Mr. Harbalis about it, let alone initiate a physical confrontation.

[74] When they did physically engage with Mr. Harbalis, it was in response to seeing him hit Mr. Ali in the head with a chair during an apparent violent rampage. However much they may have disapproved of Mr. Harbalis touching Ms. Kavouras’s hair, and accepting that they may have felt especially protective of women, the violence they saw against Mr. Ali seems on any view to be much worse behaviour.

[75] There is no evidence that either Mr. Campbell or Mr. Josling struck any gratuitous blows or applied any force in addition to whatever they were doing to restrain Mr. Harbalis when any comment about touching a woman was made.

[76] There is also no evidence from which I can say whether there was any additional context for such a comment. Mr. Campbell and Mr. Josling were located closest to Mr. Harbalis’s head and would be the most likely people to hear anything he might have said. Mr. Jaijairam said that Mr. Harbalis assaulted him immediately after complaining about his treatment at the restaurant. The most likely subject of his complaints would seem to be Ms. Kavouras refusing to serve him further and Mr. Jaijairam asking him to leave after he touched her hair. While I appreciate that there is no direct evidence of this, it strikes me as a reasonable possibility on the evidence that he may have continued to make similar complaints while being restrained, and that this could well have been the context for any comment about touching a woman.

[77] I find that the evidence powerfully supports the inference that Mr. Campbell and Mr. Josling would have shared the same motivation that Mr. Jaijairam and Mr. Ali described themselves having throughout the struggle: protecting themselves and others in the restaurant from any further violent behaviour by Mr. Harbalis.

[78] Accordingly, I find that the first two elements of self-defence are satisfied.

s. 34(1)(c) – The Response

[79] It is not in dispute that the defendants together with Mr. Jaijairam and Mr. Ali were justified in using some force to get Mr. Harbalis under control and stop his violent behaviour. The Crown alleges however that Mr. Campbell applied a chokehold with his arm while Mr. Josling encouraged him to put Mr. Harbalis to sleep. Crown counsel alleges that this act went too far and was beyond anything that could be reasonable when four men were holding Mr. Harbalis down and containing the threat that he admittedly posed.

[80] In assessing whether it has been proven that the force used was unreasonable, I first must determine whether the impugned conduct has been proven. The Crown’s allegation rests primarily on the evidence of Mr. Raghubeer. The defence challenged the reliability of his observations on several bases including his vantage point and the consistency of his statements and evidence with the video and other evidence.

[81] For the following reasons, I have concluded that Mr. Raghubeer’s basic report of a chokehold accompanied by a direction to “put him to sleep” is supported by enough independent evidence to be reliable, but that many of the details he described are not and that I cannot say that this chokehold lasted for any significant amount of time or that Mr. Harbalis lost consciousness during it.

[82] Mr. Raghubeer made some demonstrable errors in his description of the sequence of events and the amount of time he was watching. Of course, this is not at all surprising and virtually every witness in this trial gave at least some evidence that was contradicted by the video or by seemingly reliable evidence from other witnesses to the same events. Everyone who works in the criminal justice system quickly learns the fallibility of human memory and appreciates the frailties of eyewitness descriptions of events.

[83] Given the significance of Mr. Raghubeer’s evidence and the apparent frailties in his memory, I have looked at the extent to which his memory is supported by the other evidence. His critical observations are substantially supported by three bodies of evidence.

[84] First, his description of a chokehold and the demonstration he gave of an arm wrapped around the neck is supported by what Mr. Ali testified to. I appreciate that Mr. Ali was not entirely consistent about whether the arm was tight to the neck and that he disavowed his earlier use of the word “chokehold.” However, the general position of the arm he demonstrated in his evidence was similar and he placed this near the beginning of the struggle, which is when Mr. Raghubeer was watching. Ms. Kavouras also recalled one of the defendants holding Mr. Harbalis around the neck, although the position on the floor she described was different.

[85] Second, the chokehold Mr. Raghubeer described seems to strongly accord with the medical evidence. Mr. Harbalis’s body showed several indications of a broad compressive force being applied around the neck. While Dr. Pollanen could not rule out that an abrupt blunt force could have caused the fractures to the hyoid bone and the cartilage, he said that these injuries typically come from compressive force and there were other signs of such force including bleeding in the muscles of the neck and hemorrhages in the eyelids and throat. It strikes me as unlikely that Mr. Raghubeer would mistakenly believe he saw an arm used in a deliberate choke around the neck and for Mr. Harbalis to have coincidentally suffered injuries typical of such a choke in some other way.

[86] Third, both Ms. Guay and Ms. McDonald reported hearing “put him to sleep” or “go to sleep” from the area of the struggle. I have already noted that Ms. Guay’s evidence about what she heard was undermined in cross-examination, but Ms. McDonald was confident in her memory of this comment. I do not find persuasive the submission that “go to sleep” might have been a way of telling Mr. Harbalis to calm down. The fact that two other witnesses heard something similar substantially supports Mr. Raghubeer’s evidence that “put him to sleep” was said in apparent reference to the chokehold that he observed and that this reflected an intention to choke Mr. Harbalis into unconsciousness to stop him from continuing to struggle and to neutralize the threat that he posed to the persons in the restaurant.

[87] However, I am not confident in other portions of Mr. Raghubeer’s evidence. His recollection about the timing and duration of his observations was demonstrably unreliable and he was wrong about the number of persons involved in the restraint. His total opportunity to observe was brief and at the very start of the struggle.

[88] I do not accept his evidence that he saw someone who must necessarily have been Mr. Josling repeatedly lift Mr. Harbalis’s arm and let it drop while Mr. Harbalis appeared motionless and apparently unconscious. No other witness observed any period of apparent unconsciousness on the part of Mr. Harbalis and this evidence is inconsistent with the evidence of both Ms. Kavouras and Mr. Ali, who were in a better position to observe than Mr. Raghubeer throughout the time he appears on the video to have been watching. The period of restraint continued for many more minutes and I cannot accept that Mr. Harbalis was choked unconscious even briefly at this early stage without Mr. Ali or Mr. Jaijairam noticing. There is considerable evidence that Mr. Josling was holding down Mr. Harbalis’s left arm to prevent him from getting up and I find that Mr. Raghubeer may have misinterpreted this.

[89] I also have difficulty reconciling this part of Mr. Raghubeer’s evidence with the apparent demeanour of observers on the surveillance video, including him. I would expect what he described – a chokehold being maintained on an apparently fully unconscious person – to be an alarming sight for anyone witnessing it. While Mr. Raghubeer did walk away and call 9-1-1 minutes later and some other eyewitnesses expressed some general criticism about what they saw, nobody reacted as though a person was being apparently choked potentially to death in front of their eyes or took any steps to discourage or stop Mr. Campbell from anything he was doing.

[90] I cannot make any finding about how long the chokehold Mr. Raghubeer observed was held. The medical evidence suggests that some significant force was used. However, Dr. Pollanen testified that a brief period of neck compression could have caused the injuries to the neck and then been a contributing cause to a later cardiac failure brought on by the cumulative stress of the struggle and Mr. Harbalis’s pre-existing vulnerability to heart failure.

[91] The Crown submits that the evidence of Ms. Guay and particularly Ms. McDonald could support the inference that something like “go to sleep” was said more than once and was repeated after the initial portion of the struggle observed by the eyewitnesses, and that this supports a finding of continuing efforts by the defendants to choke Mr. Harbalis into unconsciousness.

[92] I am not confident in the reliability of either witness’s memory about when they heard this comment. There is very little evidence about what exactly either defendant was doing during the last ten minutes or so of the restraint. It is possible that Mr. Campbell choked Mr. Harbalis for some extended period during this time with the encouragement of Mr. Josling and possible that this could have caused death by asphyxia rather than heart failure. I find however that the evidence is equally consistent with a brief period of choking in the very early stages of the struggle that was one cause of a later sudden cardiac failure as described by Dr. Pollanen. I cannot make any finding that either defendant applied any force beyond holding Mr. Harbalis down during the time after Mr. Raghubeer left about 80 seconds into the event.

[93] Based on these findings, I must assess whether a brief chokehold with the apparent intention of rendering Mr. Harbalis unconscious shortly after he was taken to the floor was an unreasonable use of force in all of the circumstances. In doing this, I have considered all of the factors in s. 34(2) of the Criminal Code. As is normal, some are much more significant than others in this factual situation and I will not review them each individually.

[94] I accept some of the key components of the Crown’s position. I have no difficulty concluding based on the medical evidence and the application of common sense that choking someone with the intention of rendering them unconscious by cutting off the blood supply to the brain in an uncontrolled environment is an inherently dangerous act that creates an obvious risk of serious injury or death. For this reason, it is not how I would expect a trained security person or police officer to break up a typical bar fight or to pacify someone unruly.

[95] I also agree that the relatively long physical engagement with Mr. Harbalis reached a point quite early where the risk he posed could be controlled with less dangerous force. While Mr. Harbalis was the biggest participant in the fight and was evidently both strong and in some sort of frenzy at the time, after some initial grappling he appears to have had the weight of four men on him and to have been unable to stand. At some point Mr. Ali was able to leave the other three to retrieve a telephone wire and then return.

[96] With the benefit of time to consider the situation, it is easy to say that the relative risk to Mr. Harbalis of applying a tight chokehold substantially outweighed the risk that he would overpower four men and seriously hurt someone. This is even easier to say with the hindsight knowledge that the authorities would arrive in a matter of minutes and that Mr. Harbalis was especially vulnerable to sudden death because of his oversized and damaged heart.

[97] My task however is not to employ hindsight, nor to take advantage of the benefit of time for careful reflection that the defendants did not have, to decide whether they made the best possible decisions under the pressure of shocking events. Rather, my task is to decide whether what they did was unreasonable in all of the circumstances.

[98] Those circumstances include a number of factors that support affording some flexibility in their choice of defensive measures. Firstly, they were responding to a sudden situation of real peril. Mr. Harbalis’s conduct as captured by the video would have been extremely frightening for the four men involved in the struggle. He was a very large man and after he began his assault on Mr. Jaijairam he was relentless in pursuing him. Mr. Harbalis was moving very quickly and clearly employing as much force as he could. It is obvious from the video that he was completely out of control. Had Mr. Campbell and Mr. Josling not intervened it is entirely possible that Mr. Harbalis would have caused serious injury to himself and others.

[99] Relatedly, I find that the role of the defendants in the incident was the laudable one of trying to protect others from serious harm. In Khill at paragraph 84, the Supreme Court of Canada identified a spectrum on which a defendant’s role in the incident can be placed “from the Good Samaritan and the innocent victim of an unprovoked assault, to the initial and persistent aggressor, and everything in between.” The defendants in this case were acting as Good Samaritans. This does not give carte blanche to employ disproportionate force in response to a violent situation, but it militates in favour of a more forgiving standard when assessing the reasonableness of their decisions.

[100] I also must consider the limited time the defendants had to respond to the situation at the time Mr. Raghubeer saw the chokehold applied. This was within about 80 seconds of the onset of the struggle, a struggle that included Mr. Harbalis casting off all four men at one point and getting to his knees and significant initial grappling to try to get him under control.

[101] In thinking about the decision-making of the four men, I was struck by a comment made by Evan Cosgrove, an eyewitness to the early part of the struggle who himself had worked in the restaurant business. He had not seen the initial aggression from Mr. Harbalis and volunteered his opinion that what was taking place appeared to be the ejection of a customer being carried out in an unprofessional way. While he misunderstood the context, in a sense Mr. Cosgrove was right. These men were not professionals and were completely unprepared to deal with a sudden violent and frightening attack by a very large man. This is evident from some of their decisions. For example, trying to tie Mr. Harbalis up with telephone wire strikes me, with the benefit of distance from the situation, as an absurd and futile idea. I infer that these men must have reasonably been afraid and did not know exactly what to do.

[102] I find that the most that has been proven is that the defendants may have made a brief misjudgment about the amount of force necessary and appropriate to get Mr. Harbalis under control. They were making decisions in the face of a real threat of harm to others and with little time for careful consideration. They were trying to help. I do not believe that they meant to cause serious harm to Mr. Harbalis. I also do not believe that it can be said that this brief misjudgment rose to the level of being unreasonable in all of the circumstances making criminal liability appropriate.

[103] This arguable misjudgment, in combination with Mr. Harbalis’s heart condition, contributed to very sad consequences. I do not know what came over Mr. Harbalis to cause his sudden violent behaviour that night but it is tragic that he was not able to receive the help he clearly needed. It has been obvious presiding over this trial that his loss is deeply felt by his family and that everyone involved that night has been profoundly affected by his death. While his death was a tragedy, I do not find that it was caused by a criminal act by Mr. Campbell. I accordingly need not decide whether Mr. Josling has been proven to have abetted Mr. Campbell.

Disposition

[104] I find Mr. Campbell and Mr. Josling not guilty. I am very grateful to counsel for their excellent and professional work.

Dineen J.
Released: June 24, 2025