ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
NASHON MARSHALL
Defendant
COUNSEL:
Cynthia Valarezo, for the Crown
Gary Grill, Arika Kleiman, for the Defendant
HEARD: July 28 and 29, August 1 and 7, November 13 and 14, 2025
REASONS FOR JUDGMENT
A. INTRODUCTION
1Mr. Marshall is charged with one count of robbery for stealing a Toyota Corolla in Toronto on May 9, 2022, that belonged to Mr. Phan and his wife, Ms. To, contrary to s. 344(1) of the Criminal Code, R.S.C., 1985, c. C-46 (“Code”).
2Mr. Marshall concedes that the essential elements of the offence have been established beyond a reasonable doubt. The only issue is whether he is not guilty of robbery because he was acting in self-defence under s. 34 of the Code.
3Prior to 2013, self-defence was set out in ss. 34 to 37 of the Code. Generally, those sections made self-defence available to an accused who used defensive force against an aggressor or in response to a perceived threat of force. On March 11, 2013, the four separate categories of self-defence were replaced with a unifying self-defence section found in s. 34 of the Code.
4In R. v. Khill, 2021 SCC 37, 462 D.L.R. (4th) 389, at para. 40, the Supreme Court of Canada confirmed that s. 34 is broader in scope than the previous sections. Self-defence is no longer limited to the defensive use of force against an aggressor and can apply to other classes of offences, including ones committed against an innocent third party who was not the aggressor.
5In this case, Mr. Marshall argues that he is not guilty of robbery because he acted in self-defence. Specifically, he states:
a. He had reasonable grounds to believe that force or a threat of force was being used against him by men in a parking lot from whom he was buying a kilogram of cocaine, and from another group of men adjacent to the drug dealers;
b. The act of robbing the Toyota Corolla in the same parking lot was for the purpose of defending or protecting himself; and
c. The robbery was reasonable under the circumstances.
6The Crown’s case was based solely on an Agreed Statement of Fact (“ASF”) and the viva voce evidence of Mr. Phan and Ms. To. Mr. Marshall also testified in his own defence.
B. OVERVIEW
7The following overview is taken primarily from the ASF. I commend counsel for having prepared it. Events described that were not included in the ASF are from the evidence at trial, and I identify who gave that evidence. Some facts were not disputed in closing argument. Later in my reasons, I make factual findings on the disputed facts.
8On May 9, 2022, Mr. Marshall went to the Sheridan Mall parking lot located in Toronto, Ontario, by way of taxi to buy one kilogram of cocaine for $40,000. He testified that he arranged to buy it from a man named Lada, whom he had never met before. He was told Lada drove a white SUV. It is not disputed that Mr. Marshall brought with him a loaded handgun, and $40,000 in cash in a white plastic bag.
9After arriving at the parking lot, Mr. Marshall asked the taxi driver to park and wait for him. He gave the driver $20 and told him he would be back shortly. Mr. Marshall then walked eastwards in the parking lot. He saw a white SUV parked with its lights on. He also saw a group of men gathered behind parked vehicles a few parking spots to the west of the white SUV.
10Mr. Marshall testified that he assumed Lada was among the group of men west of the white SUV. He said he approached them, did not know any of them, and that he had asked for Lada. One of the men called over in the direction of the white SUV asking for Lada. A person yelled back saying Lada would be back soon. About three minutes later, someone in the direction of the white SUV yelled that Lada was back. Mr. Marshall walked to the back of a white Acura SUV parked a few spots to the east.
11Mr. Marshall testified that as he approached the back of the white Acura SUV, he was not expecting any trouble although his hand was inside his hoodie pouch where he was holding his gun.
12Three men were behind the white Acura SUV. In what Mr. Marshall believed was an attempt to rob him, one man pulled out a knife and lunged at him. Another brandished what Mr. Marshall believed was a gun. In response, Mr. Marshall pulled out his gun and fired several shots at the men. He testified that everything happened so fast, and that he fired his gun to protect himself.
13Two of the men ran away. One of them was Mr. Scott, who ultimately died from gunshot wounds. The third man, Lada (or Mr. Bailey), remained and boarded his car, the white Acura SUV. He fled the scene within a minute of the shots being fired.
14Mr. Marshall was charged with second degree murder and was tried by Justice Davies and a jury. He testified that he was acting in self-defence when he shot at the men. He was acquitted on that basis on May 3, 2025.
15Immediately after Mr. Marshall shot his gun at the men behind the Acura SUV, he ran to the front of the SUV and fired two or three more shots in the air or to the ground. He testified he did so to scare others off – or, to use his words from the second degree murder trial which he ultimately adopted at this trial, so that others would “duck or dive”. He explained that if he had heard shots being fired, he would have kept “ducking” which I accepted to mean he would hide and not pursue the person shooting the gun.
16Video footage of the parking lot during the altercation shows several people immediately running away and cars driving away after Mr. Marshall shot his gun.
17He testified that he had no time to think of his options and that he was terrified. He said he thought the group of men he first encountered to the west of the Acura SUV had planned with Lada to rob him of his $40,000. He said this is why he did not run west to where his taxi was waiting because he would have had to pass this same group of men who had cars and could have run him over. Instead, he ran east.
18Mr. Marshall’s evidence was that, after running in front of the white Acura SUV, he was looking for a car to use as an escape. He considered taking a vehicle parked two spots to the east of the Acura SUV. Video footage admitted at trial showed it had its lights on and was pulling out of its parking spot just before Mr. Marshall passed in front of it. Mr. Marshall testified that he still had his gun in his hand at this point. The video shows Mr. Marshall pausing briefly as this vehicle continued to pull out of its spot. Mr. Marshall testified that he heard the driver “step on the gas” and he thought the car was going to run him over. This car left the scene.
19Mr. Marshall continued to run south in the parking lot, still away from where the taxi was parked. He testified that he was still looking for a vehicle to take. He ran towards a Toyota Corolla that belonged to Mr. Phan, and his wife, Ms. To. It was parked approximately eight or nine parking spots to the southeast of the Acura SUV.
20Video footage from just before the shooting shows that Mr. Phan had parked his vehicle, and Ms. To exited the front passenger seat to help their daughter out of the rear seat. Ms. To testified that when she heard gun shots, she pushed her daughter back in the rear seat of the vehicle and she entered the rear seat with her daughter. This is consistent with the video evidence.
21In his closing argument, defence counsel argued the video evidence showed only 12 seconds elapsed between when Mr. Marshall first shot his gun at the three men behind the Acura SUV and when he approached the Toyota Corolla. The period during which he shot his gun, both behind the Acura SUV and in front of it, was four seconds. According to the ASF, there were 10 seconds between Ms. To closing the rear passenger door (after she heard gun shots) and Mr. Marshall arriving at the Toyota Corolla. Based on my own review of the evidence, including the ASF, I am satisfied that it was approximately 12 seconds between when Mr. Marshall first shot his gun and when he approached the Toyota Corolla.
22When Mr. Marshall arrived at the vehicle, Mr. Phan was in the driver’s seat and Ms. To and their daughter were in the rear seat. Mr. Marshall told Mr. Phan to get out of the car.
23There is a factual dispute as to whether Mr. Marshall was holding his gun at the time he arrived at the vehicle and demanded Mr. Phan get out of the car. Mr. Marshall testified that he put the gun back in his hoodie pocket before he arrived at the Toyota Corolla. Mr. Phan and Ms. To both testified that Mr. Marshall was holding a gun when he arrived at the car.
24It is admitted that Mr. Marshall forcibly grabbed Mr. Phan to remove him from the driver’s seat. Ms. To and their daughter quickly exited the backseat of the vehicle as Mr. Marshall moved to sit in the driver’s seat. Mr. Marshall drove out of the parking lot in the Toyota Corolla, which was recovered by police three days later. Mr. Marshall was arrested on September 20, 2022, approximately four months later.
25The Crown does not dispute that Mr. Marshall shot his gun in self-defence while behind the Acura SUV. However, Crown counsel argued that his motive and intention changed as he moved to the front of the white Acura SUV and tried to steal a car to get away. Specifically, the Crown argued that when he stole the Toyota Corolla, his purpose was not defensive; Mr. Marshall’s purpose was to escape police detection. Crown counsel argued that Mr. Marshall knew that if he returned to the taxi, the police could track him down, so he chose to steal a car instead.
Switching Defences
26From the commencement of the trial until after the Defence’s case closed, Mr. Marshall relied solely on the defence of necessity. On August 1, 2025, when closing arguments were to be heard, his counsel asked for an adjournment to consider whether Mr. Marshall would be advancing self-defence, given its broader scope since the 2013 amendments to s. 34 of the Code. A brief adjournment was granted.
27On the return date of August 7, 2025, Mr. Marshall’s counsel advised that Mr. Marshall was no longer relying on the defence of necessity; he was only relying on self-defence. A further adjournment was granted to allow the Crown to consider whether it would call reply evidence, and if necessary, subpoena any witnesses. The Crown decided not to call further evidence. Closing submissions were heard on November 13 and 14, 2025.
C. ISSUES
28Before assessing the elements of self-defence, I must consider whether Mr. Marshall has established an air of reality to each element of the defence based on the totality of the direct and circumstantial evidence: R v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at paras. 88 and 93; R v. Pan, 2025 SCC 12, at paras. 52 and 66. Where a defence, like self-defence, has an objective reasonableness component which cannot be established by direct evidence, a trial judge must ask whether that element of the defence can be established by circumstantial evidence: Cinous, at paras. 89 and 95.
29For reasons which I explain when considering each element of self-defence, I am satisfied that there is an air of reality to Mr. Marshall’s self-defence claim.
30The Crown bears the onus of proving beyond a reasonable doubt that Mr. Marshall was not acting in self defence. The three elements of self-defence are set out in s. 34(1)(a) to (c) of the Code. Specifically, I must ask:
a. Has the Crown proven beyond a reasonable doubt that Mr. Marshall did not reasonably believe that force or a threat of force was being used against him when he robbed the Phan/To family of their vehicle?
b. Has the Crown proven beyond a reasonable doubt that Mr. Marshall was not acting for the purpose of defending or protecting himself when he robbed the Phan/To family of their vehicle?
c. Has the Crown proven beyond a reasonable doubt that Mr. Marshall’s act of robbing the Phan/To vehicle was not reasonable in the circumstances?
31If the Crown has proven any one of the above three issues beyond a reasonable doubt, then Mr. Marshall’s self-defence claim fails.
32Mr. Marshall testified in his own defence. In considering the above three elements of self-defence, I am guided by R. v. W. (D.), 1991 93 (SCC), [1991] 1 S.C.R. 742 when I assess Mr. Marshall’s subjective evidence relevant to each element. Specifically:
a. If I accept Mr. Marshall’s evidence on these issues, I must find him not guilty.
b. If, after considering all the evidence, I am uncertain whether I believe Mr. Marshall’s evidence, I must find him not guilty.
c. Even if I do not believe Mr. Marshall’s evidence, but I am still left with reasonable doubt as to whether Mr. Marshall acted in self-defence, I must find him not guilty.
d. And finally, even if Mr. Marshall’s evidence does not leave me in reasonable doubt of his guilt, I may only convict if the rest of the evidence demonstrates that at least one of the elements of self-defence was not present when Mr. Marshall stole the Toyota Corolla..
D. ANALYSIS
Issue Estoppel / Res Judicata
33In considering each element of self-defence, I must be mindful of what the jury in Mr. Marshall’s second degree murder trial must have found. The jury acquitted Mr. Marshall after considering these events and the defence of self-defence. Issue estoppel arises if there are issues to be decided in this case that are the same from the murder trial and which were decided in Mr. Marshall’s favour. Specifically, as I explain, issue of estoppel in relation to the following two issues must be considered:
a. Whether Mr. Marshall reasonably believed force, or the threat of force was being used against him, and if so, for what period, and
b. Whether Mr. Marshall was acting for a defensive purpose, and if so, for what period.
34The issue estoppel does not arise with respect to whether Mr. Marshall’s act of stealing the Toyota Corolla was reasonable, as the jury did not consider this issue.
35Issue estoppel first arose when Crown counsel cross-examined Mr. Marshall and suggested to him that he shot his gun in front of the Acura SUV towards the sky and the ground to get away before the police arrived.
36Defence counsel objected, arguing that because the jury acquitted Mr. Marshall of murdering Mr. Scott, it was improper for Crown counsel to put to Mr. Marshall that he was shooting his gun to try to get away before the police arrived. It was improper because the Crown’s theory at the murder trial was that Mr. Marshall was intending to shoot at Mr. Scott when Mr. Marshall was behind the Acura SUV and that he continued to fire shots at Mr. Scott when Mr. Marshall moved in front of the Acura SUV.
37At this trial, and the murder trial, Mr. Marshall testified that once he moved to the front of the Acura SUV, he was firing shots in the air and to the ground to scare off others in self-defence.
38Defence counsel argued that the jury must have accepted that at all times when he was firing his gun, he was acting in self-defence. In response, Crown counsel conceded that the Crown’s theory in the murder trial was that Mr. Marshall was continuing to shoot at Mr. Scott as he ran away, in front of the Acura SUV. However, the jury could have acquitted Mr. Marshall based on self-defence solely on what occurred at the back of the Acura SUV. Crown counsel agreed to move on from this line of questioning and issue estoppel would be argued the next day of trial.
39The next day, Crown counsel accepted that the jury must have had reasonable doubt that Mr. Marshall shot at Mr. Scott when Mr. Marshall was in front of the Acura SUV, or they accepted Mr. Marshall’s evidence that he shot at the ground or the air so that people would “duck or dive”. Crown counsel said that this is consistent with the position that the Crown is taking in this trial. Crown counsel stated that her questioning of Mr. Marshall was not inconsistent with the jury’s verdict. On this basis, Mr. Marshall’s counsel acknowledged that there was no disagreement between the parties with respect to the application of the jury’s verdict in the murder trial in relation to this trial. At this point in the trial, necessity remained the only defence Mr. Marshall relied upon.
40By the time of closing arguments, however, Mr. Marshall was advancing a different defence – self-defence. Therefore, it was necessary to hear arguments as to whether issues in this case were decided by the jury in Mr. Marshall’s murder trial.
41In R. v. Mahalingan, 2008 SCC 63, [2008] 3 S.C.R. 316, the Supreme Court of Canada clarified the application of issue estoppel in criminal law. Principles relevant to this case from Mahalingan are:
a. Issue estoppel, as a branch of res judicata, is concerned with whether an issue to be decided in proving the current action is the same as an issue decided in a previous proceeding, not whether the cause of action in two proceedings is the same. Historically, it has applied to both civil and criminal law: at para. 16.
b. Only issues which were decided in the accused’s favour, whether on the basis of a positive factual finding or a reasonable doubt, are the subject of issue estoppel: at para. 22.
c. Not every factual issue in the trial resulting in an acquittal results in an estoppel at a subsequent trial; only those issues which were expressly resolved or, given how the case was argued, had to be resolved for there to be an acquittal. If a particular issue was decided in favour of the accused at a previous trial, even if the issue was decided on the basis of reasonable doubt, issue estoppel applies: at para. 23.
d. The determination of whether an issue was decided at a first trial, either expressly or necessarily as a prerequisite to an acquittal, must be based on a review of the relevant portions of the transcript of the first trial, in particular, the allegations, the nature of the Crown’s case, and the defence’s case. The accused claiming issue estoppel bears the burden of showing that a particular issue was decided in his or her favour in a previous proceeding: at para. 23.
e. The Crown is estopped from leading evidence which is inconsistent with findings made in a previous trial, whether those findings were expressly made in the accused’s favour or resolved on the basis of a reasonable doubt. In which case, issue estoppel applies only to findings on a prior trial. The determination of whether an issue was decided at the first trial will be a factual issue at the second trial in each case: at para. 26.
f. The Crown is permitted (absent the operation of the other rules of evidence) to lead evidence relating to issues litigated in an earlier proceeding: (1) if the issue was not decided in the accused’s favour in the earlier proceeding; and (2) if the issue was decided in the earlier proceeding, but the Crown is not seeking to use the evidence to contradict the factual finding on that issue at the previous trial: at para. 26.
g. The burden is on the accused, in the second trial, to show that the issue the Crown is seeking to prove is the same as an issue resolved in the accused’s favour in a prior criminal proceeding. To establish this, the accused must show the question was or must necessarily have been resolved on the merits in the accused’s favour in the earlier proceeding. It is not enough to show that the evidence was led in the earlier proceeding and an acquittal entered. It must be a necessary inference from the trial judge’s findings or from the fact of the acquittal that the issue was in fact resolved in the accused’s favour: at para. 52.
h. When the first trial was a jury trial that resulted in an acquittal, it may be harder for the accused to determine whether a particular issue was resolved in favour at the first trial. The question is whether a finding in favour of the accused is logically necessary to the verdict of acquittal – a question to be determined with reference to the essential elements of the verdict: at paras. 53-54.
42Defence counsel argued that the jury decided that in the four seconds Mr. Marshall was shooting his gun, specifically, starting from behind the Acura SUV and continuing to when he ran in front of the SUV, he was acting for a defensive purpose. I understand Mr. Marshall also argued that at least during this time, the jury must have also found Mr. Marshall reasonably believed force or the threat of force was being used against him.
43Crown counsel argued the jury must have found that Mr. Marshall was acting for a defensive purpose (and reasonably believed force or the threat of force was being used against him) only when he first shot his gun from behind the Acura SUV. Crown counsel also argued its theory of the case at the murder trial is not determinative because the Crown argued Mr. Marshall was guilty of second-degree murder, and in the alternative, manslaughter. In the absence of specific factual findings by the jury, it cannot be determined on which essential element of self-defence the jury found the Crown failed to meet its onus.
44After reviewing the final jury instruction given to the jurors and hearing arguments from counsel, I am satisfied that the following findings in favour of Mr. Marshall would have been logically necessary for the jury to reach the verdict of an acquittal:
a. Mr. Marshall reasonably believed force, or the threat of force, was being used against him when he shot his gun behind the Acura SUV, or that the Crown had not disproved this fact;
b. Mr. Marshall shot at Mr. Scott from behind the Acura SUV for the purpose of defending or protecting himself from the use of force, or that the Crown had not disproved this fact;
c. Mr. Marshall shooting at Mr. Scott was reasonable in the circumstances, or that the Crown had not disproved this fact.
45I am not persuaded that the jury necessarily found that, when Mr. Marshall continued to shoot his gun after he ran in front of the Acura SUV, he reasonably believed force or the threat of force was being used against him, or that he was acting for a defensive purpose. I reach this conclusion for the following reasons.
46First, at the murder trial and this trial, the only evidence of Mr. Marshall shooting at Mr. Scott and the two other men was when he was behind the Acura SUV. Therefore, the jury must have accepted that at least for the period when Mr. Marshall shot his gun from behind the white Acura SUV, he reasonably believed force, or the threat of force, was being used against him and that he shot his gun at the men for a defensive purpose.
47Second, when Mr. Marshall ran from behind the Acura SUV to the front of it and continued to shoot his gun, the evidence at both trials was that Mr. Scott was running ahead of him. Mr. Marshall admitted that he shot and killed Mr. Scott, but the jury may have found that it was the shots fired from behind the Acura SUV that caused Mr. Scott’s death. At both trials, Mr. Marshall said he was not aiming at Mr. Scott when he continued to shoot his gun in front of the Acura SUV. If the jury found that the shots that killed Mr. Scott were from behind the Acura SUV, or they had reasonable doubt that the shots fired in front of the Acura SUV killed Mr. Scott, they would not have had to consider whether Mr. Marshall was acting for a defensive purpose when he shot in front of the SUV.
48Third, Mr. Marshall’s evidence at both trials was that, after he ran in front of the Acura SUV, he shot in the air and at the ground to prevent others from following or shooting at him. We do not know whether the jury accepted that evidence to conclude he was continuing to act for a defensive purpose when he fired his gun in front of the Acura SUV. Even if they accepted it, the jury was instructed that a person’s purpose for acting can evolve as an incident progresses or escalates. At this trial, the evidence was that Mr. Marshall shot his gun for a total of four seconds.
49Therefore, for the entire period from when he first shot his gun to the time of stealing the Toyota Corolla, it cannot be said the jury determined Mr. Marshall reasonably believed force or the threat of force was being used against him or that he was acting for a defensive purpose for this entire period.
50Having explained that, I accept as a fact that the period between the initial shot and Mr. Marshall stealing the Phan/To family’s vehicle was very brief – approximately 12 seconds. The necessary findings I infer from the jury’s verdict in the murder trial establish that Mr. Marshall reasonably believed force, or the threat of force was being used against him and that he acted for a defensive purpose for the initial few seconds when he shot his gun behind the Acura SUV. Whether that reasonable belief and defensive purpose continued when he stole the Toyota Corolla is a separate issue that I must decide in this case.
Issue 1: The Catalyst: Has the Crown proven beyond a reasonable doubt that Mr. Marshall did not reasonably believe that force or a threat of force was being used against him when he robbed the Phan/To family of their vehicle?
Legal Principles
51In considering this element, I must consider Mr. Marshall’s state of mind and his perception of events that led him to act: Khill, at para. 52.
52Mr. Marshall’s actual belief must be held “on reasonable grounds”: Khill, at para. 53, citing Cinous, at para. 121. The reasonableness of his beliefs are to be assessed from the perspective of an ordinary person who shares the attributes, experiences, and circumstances of Mr. Marshall where those characteristics and experiences are relevant to Mr. Marshall’s belief or actions: Khill, at para. 54, citing R. v. Lavallee, 1990 95 (SCC), [1990] 1 S.C.R. 852, at p. 883.
Evidence of Reasonable Belief of Force/Threat of Force
53According to the ASF, Mr. Marshall believed the three men at the Acura SUV were attempting to rob him, with one man lunging at him with a knife and another brandishing what Mr. Marshall believed to be a gun. In response, Mr. Marshall pulled out his firearm and fired several shots at the men. Two of the men ran away, and the remaining man boarded his Acura SUV and fled the scene within a minute of the shots being fired.
54At trial, it was clear that one of the two men who ran away was Mr. Scott, who ultimately died from gunshot wounds. The man who boarded the Acura SUV was Mr. Bailey, the person from whom Mr. Marshall was to purchase cocaine.
55Mr. Marshall testified that after the men attempted to rob him and he shot his gun, he was terrified. He said everything happened so fast and the event was unexpected. He said he had no time to think of his options. He feared that the group of men he initially met a few parking spots to the west of the Acura SUV were probably involved. Therefore, he felt he could not run west towards his taxi. He thought the group of men would kill him by running him over or shooting at him. In cross-examination, he further explained that the area is populated with gangs and a lot of people have guns.
56He testified that, after he ran in front of the Acura SUV, he continued to fire his gun to scare people so that they did not shoot at him. In cross-examination, he confirmed that he shot his gun so that others would “duck” for cover, or “dive” to get away.
57The Crown argued Mr. Marshall did not have a reasonable belief that force, or the threat of force was being used against him for two reasons. First, the Crown argued Mr. Marshall was not credible or reliable. Therefore, his evidence of being afraid should not be relied upon. Furthermore, subjective fear cannot be inferred from the evidence. Second, even if the circumstances establish that Mr. Marshall held a fear for his safety, it was not objectively based.
Analysis
58I am not satisfied beyond a reasonable doubt that Mr. Marshall did not reasonably believe a threat of force would be used against him when he stole the Toyota Corolla.
59I begin with Mr. Marshall’s subjective belief. Not all of Mr. Marshall’s evidence was credible. But I accept that he feared for his safety in the seconds between first shooting his gun and robbing the Phan/To family’s vehicle. I agree with, and am bound by the jury’s finding that, Mr. Marshall must have held such a fear at least in the initial seconds after he shot his gun.
60The Crown argued Mr. Marshall could not have perceived a threat to his safety from the three men after he ran out in front of the Acura SUV. In cross-examination, Mr. Marshall said that after he shot his gun and ran to the front of the Acura SUV, he did not know what happened to the three men. He did not know if they jumped into a car or ran away. He also said that when he approached the Phan/To family’s vehicle, no one was near him. The ASF establishes that Mr. Bailey went inside his vehicle, and therefore, was not proximate to Mr. Marshall at the time Mr. Marshall approached the Phan/To family’s vehicle. Therefore, the Crown states Mr. Marshall, after he ran out in front of the Acura SUV, could not have reasonably believed that the three men were using or threatening force against him eight seconds after he last shot his gun, and when he stole the vehicle.
61This argument does not satisfy me. The video evidence demonstrates there was chaos after Mr. Marshall shot his gun, with people running and cars driving away swiftly. It also showed Mr. Marhsall’s head turning forward and backwards, after he attempted to steal the first car. This environment would have made it difficult for Mr. Marshall to have known the whereabouts of the three men. In any event, even if he knew they were not immediately proximate to him, he would still have a basis to continue to fear for his safety. He knew Mr. Bailey had a car and could have pursued him by car. The ASF establishes Mr. Bailey went into his vehicle and stayed there for a minute.
62I also reject the argument that Mr. Marshall had no reason to fear others because he was shooting to the air and to the ground; the Crown relied on Mr. Marshall’s evidence that he did so so that others would not shoot or pursue him. This reasoning is circular. He shot in the air and to the ground because of his fear for his safety from others. In the brief 12 seconds over which the event unfolded, it would be unreasonable to find that Mr. Marshall suddenly believed he was safe because no one was proximate to him after he had shot in the air and to the ground to scare others away. Fear for one’s life is a powerful human emotion that cannot be readily switched off.
63Mr. Marshall’s fear of the group of men a few parking spots adjacent to the Acura SUV can be inferred from the evidence. The only evidence was that Mr. Marshall did not know the men, but they knew Mr. Bailey (Lada) - the man who Mr. Marshall believed tried to rob him. According to Mr. Marshall, the area of the parking lot where the group of men were located was where people would often sell drugs. Mr. Marshall knew this because he had bought drugs in this area before. He also testified that the area was known for gangs and that a lot of people carried guns. From these circumstances, Mr. Marshall’s subjective fear of these men as potential conspirators with Mr. Bailey can be reasonably inferred.
64This group dynamic suggests a heightened risk to Mr. Marshall. “An accused who is outnumbered in a physical dispute may face a heightened risk of danger. A coordinated assault from multiple assailants may be more formidable than an assault from an individual assailant, or even a series of assailants”: R. v. Sels, 2025 ONCA 592, at para. 19. This is a relevant factor when deciding if Mr. Marshall had a reasonable fear for his safety: Sels, at para. 17.
65Mr. Marshall was not consistent in his evidence with respect to the number of these men, stating at first it was 10 to 15 men, but later in cross-examination, agreeing it was likely around seven. This inconsistency does not negate Mr. Marshall’s perceived threat. There remained a potential heightened risk from multiple assailants. Furthermore, it is irrelevant that these men did not do anything to make Mr. Marshall fear for his safety when he first spoke with them prior to meeting Mr. Bailey. Mr. Marshall explained that he feared that they were part of a group that was conspiring to rob him.
66In assessing whether Mr. Marshall’s fear was reasonable, I must imagine what a reasonable person with the same attributes, experiences, and circumstances as Mr. Marshall would have perceived.
67Mr. Marshall grew up in the Jane and Finch area of Toronto. He testified he experienced PTSD as a child after the police “kept kicking in [his] door.” He said he also has ADHD. He has a grade eight education. Mr. Marshall knew drugs were sold in this part of the parking lot, the area had gangs, and that people in this community often carried guns. This history is relevant to Mr. Marshall’s perception of events.
68I can conceive how a reasonable person with Mr. Marshall’s life experience, exposed to the same events Mr. Marshall experienced in this case, would fear that the three men behind the Acura SUV and the group of men adjacent would pose a threat for the roughly 12 seconds between the first shots being fired behind the Acura SUV and the Toyota Corolla being stolen.
69It is consistent with logic and human experience that when others present a knife and a gun in the context of a drug deal, a person would fear for their own safety. A person with the same education, cognitive abilities, and knowledge of the community as Mr. Marshall, could reasonably conclude and fear that the group of men may have been conspirators with Mr. Bailey, and that they posed a threat to Mr. Marshall. A reasonable person in this chaotic situation would also reasonably continue to fear for their safety for at least 12 seconds after that person was attempted to be robbed.
70I have considered and rejected that such a fear would be “overly fearful,” or one held by members of a criminal subculture: Khill, at para. 56. A reasonable person who is familiar with gun and drug activity at Sheridan Mall, but not be a member of a criminal subculture, would have reasonably felt the same fear Mr. Marshall experienced.
71I have also considered that Mr. Marshall has a lengthy criminal history, which includes several gun and drug related offences. I have not attributed this history to the reasonable person in Mr. Marshall’s shoes. This is because the personal circumstances of an accused should not undermine the Code’s most basic purpose of promoting public order: Khill, at para. 56.
72For these reasons, I am not satisfied beyond a reasonable doubt that Mr. Marshall did not reasonably believe a threat of force would be used against him when he stole the Toyota Corolla.
Issue 2: The Motive: Has the Crown proven beyond a reasonable doubt that Mr. Marshall was not acting for the purpose of defending or protecting himself when he robbed the Phan/To vehicle?
73In assessing this element, I must determine whether when Mr. Marshall stole the Toyota Corolla his purpose was to defend or protect himself from the use or threat of force. The assessment of Mr. Marshall’s motive is a subjective inquiry: Khill, at para. 59.
74Mr. Marshall’s evidence was consistent at trial – he robbed the Phan/To family of their vehicle to get away quickly because he feared for his safety. The jury in the murder trial must have determined this issue in Mr. Marshall’s favour at least when he was behind the Acura SUV and shot his gun. The question is whether this purpose continued when he stole the Toyota Corolla.
75Crown counsel argued that Mr. Marshall’s motive changed after he first shot his gun behind the SUV. Specifically, he sought to avoid police detection, and he was no longer acting for a defensive purpose. As I set out later in my reasons, he acknowledged that he knew the police were going to arrest him. Crown counsel argued he tried to steal a car, rather than running west to where his taxi was waiting, because he knew the police would be able to find him more easily if he escaped by way of taxi.
76The Crown’s position at trial, consistent with Mr. Marshall’s evidence, was that when he continued to shoot his gun in front of the Acura SUV, he did so to scare others off. The shooting lasted approximately four seconds. Therefore, for at least four seconds after first shooting his gun, I cannot find the Crown has proven Mr. Marshall was not acting for a defensive purpose. Put differently, he would not have been shooting his gun if he did not have reason to believe others were potentially after him.
77The Crown then argues that in the remaining time before he arrived at the Toyota Corolla, his motive was solely to escape police detection. I am not satisfied the Crown has proven this beyond a reasonable doubt.
78First, the period between the initial shooting and robbing the vehicle was very brief – around 12 seconds. While Mr. Marshall’s purpose for acting may have evolved as the incident progressed (Khill, at para. 61), I cannot find beyond a reasonable doubt that within this brief window, his purpose switched entirely from being defensive to avoiding police detection. Human experience and logic suggest that those seeking to escape a dangerous and traumatic situation do not shift mental gears so quickly, abandoning a prior motive absolutely in favour of a new one. Acting out of fear cannot be readily switched off.
79Second, this element of self-defence only requires that part of the accused’s motive when committing the offence was for a defensive purpose, not that it be the sole purpose: R. v. E.J., 2025 ONSC 6016, at para. 86, citing R. v. Zsombar, 2023 BCCA 37, at para. 29. Even if I were to accept that Mr. Marshall’s motive was to avoid police detection, I cannot find beyond a reasonable doubt that this was his only motive. The brevity of the incident suggests otherwise.
80Crown counsel also argued Mr. Marshall sped away from the scene quickly. The Crown argued that Mr. Marshall was also on a release order when the offence was committed. These facts suggest an intention to avoid police detection. But fear of others following him could also explain why he sped away from the scene. And even if he was afraid of being caught while on a release order, he can also have acted out of fear for his own life.
81For these reasons, I find the Crown has failed to prove beyond a reasonable doubt that Mr. Marshall was not acting for a defensive purpose when he stole the Toyota Corolla.
Issue 3: Response: Has the Crown proven beyond a reasonable doubt that Mr. Marshall’s act of robbing the Phan/To vehicle was not reasonable in the circumstances?
82Counsel did not identify cases in which a Court considered self-defence in the context of the commission of an offence against an innocent third party, and specifically, the reasonableness of such a response. This is the critical part of my reasons on which my Judgment turns. How self-defence applies to an accused, who possesses a gun in the commission of an offence and then commits a further offence against an innocent third party, was before M. Brown J. and a jury in R. v. Hudson. However, there is no Judgment because that case was decided by a jury. In R. v. Owusu, 2022 ONCJ 667, Bellmore J. decided the same issue. In addition to Khill, I refer to Owuzu to assist in analyzing Mr. Marshall’s response, including his role in the incident.
83Committing a crime cannot be rendered lawful simply because an accused believed it was necessary to protect themself from a threat of force. “Self-defence demands a broader societal perspective. Consequently, one of the important conditions limiting the availability of self-defence is that the act committed must be reasonable in the circumstances”: Khill, at para. 2.
84As stated by Martin J. in Khill at para. 62: “The reasonableness inquiry under s. 34(1)(c) operates to ensure that the law of self-defence conforms to community norms of conduct. By grounding the law of self-defence in the conduct expected of a reasonable person in the circumstances, an appropriate balance is achieved between respecting the security of the person who acts and security of the person acted upon. The law of self-defence might otherwise ‘encourage hot-headedness and unnecessary resorts to violent self-help’.”
85While the analysis under “s. 34(1)(a) and (b) address the belief and the subjective purpose of the accused, the reasonableness inquiry under s. 34(1)(c) is primarily concerned with the reasonableness of the accused’s actions, not their mental state”: Khill, at para. 66.
86The determination of the whether the act was reasonable is to be measured according to “the relevant circumstances of the person, the other parties and the act” with reference to the factors listed in s. 34(2). The focus is “what a reasonable person would have done in comparable circumstances and not what a particular accused thought at the time”: Khill, at para. 65. The Court is concerned with “the perspective of a reasonable person with some of the accused’s qualities and experiences”: Khill, at para. 67.
87I turn next to the relevant factors under s. 34(2). As I consider these factors, I make various findings of fact, including whether Mr. Marshall was holding his handgun at the time he stole the Toyota Corolla.
a. Nature of the force or threat
88Mr. Marshall testified he was not expecting trouble when he approached the men behind the Acura SUV. He believed the drug deal would happen quickly, and he would return to his waiting taxi with the cocaine. From the ASF and Mr. Marshall’s testimony, the threat Mr. Marshall faced when behind the Acura SUV was from one man who lunged at him with a knife and another who brandished what Mr. Marshall believed was a gun. Mr. Marshall believed this was an attempt to rob him.
89Mr. Marshall said he was terrified. He said he shot at the ground and in the air to scare others. He said he had no time to think of his options. However, he explained that he did not run west, back to his taxi, out of fear that the group of men nearby were conspiring with Mr. Bailey and that they might go after him in their cars. I have explained why Mr. Marshall may have reasonably feared the group of men as potential conspirators.
90The threat posed by the three men behind the Acura SUV and the other group of men was objectively significant. “A group dynamic stands out as particularly relevant to one aspect of s. 34(2), namely the direction in subsection (a) to consider ‘the nature of the force or threat’”: Sels, at para. 18. Mr. Marshall had no means to know with certainty the extent of any further force Mr. Bailey or the other men, including the group of men adjacent to the Acura SUV, might use against him. Mr. Marshall did not know any of them. It would be reasonable for a person to feel that Mr. Bailey and the other men might use further force against Mr. Marshall.
91Having said that, I do not accept Mr. Marshall’s evidence that he was not expecting any trouble to unfold when he went to buy a kilogram of cocaine that day. I address this later when I consider Mr. Marshall’s role in the incident.
b. Imminence of force and other means available to respond
92As I found, Mr. Marshall had a reasonable belief that one of the three men behind the Acura SUV or the group of men adjacent to it presented a threat to him. But when Mr. Marshall stole the Toyota Corolla, it was around 12 seconds after one of the men lunged at him with a knife and the other brandished a gun. Mr. Marshall ran from the where he was attacked. He admitted that there were no other people in his immediate vicinity presenting a threat of force to him when he stole the vehicle.
93However, he knew Mr. Bailey and the group of other men had vehicles, and he was afraid they would run him over. He believed Mr. Bailey had a gun. Objectively, I find that there continued to be a threat of force against Mr. Marshall, but I cannot conclude it was imminent in the sense that there was no person immediately threatening him when he stole the Toyota Corolla and no evidence of others immediately chasing him.
94In terms of other means to respond, there were several options available to Mr. Marshall that did not involve stealing a car. He could have continued to run outside. He could have run into the mall to blend in among the crowd. He could have hidden at a place within the mall or outside (e.g., behind a parked car) to see if others were pursuing him. As he hid, he could have called the police. He could have run into the ravine behind the parking lot. He could have run west to where his taxi was waiting. He could have asked that Mr. Phan, or another driver, drive him to a police station, which he knew was 5 kilometres away.
95The existence of the group dynamic may render some options unreasonable: Sels, at para. 20. Specifically, I accept that it was not an option for him to run west to where his taxi was waiting given his reasonable fear that the group of men were conspiring with Mr. Bailey. Running into the ravine behind the parking lot would have also left him open to attack from the group, as he would have been outnumbered. He also believed Mr. Bailey had a gun.
96In considering the remaining options, it is well established that when self-defence is claimed, “the court must be alive to the fact that people in stressful and dangerous situations do not have time for subtle reflection”: R. v. E.J., 2025 ONSC 6016, at para. 96, citing R. v. Cunha, 2016 ONCA 491, 337 C.C.C. (3d) 7, at para. 7. In choosing to rob the Toyota Corolla, rather than another option, Mr. Marshall “cannot be expected to weigh to a nicety, the exact measure of necessary defensive action”: R. v. Baxter 1975 1510 (ON CA), [1975], 27 C.C.C. (2d) 96, at p. 111.
97Of the remaining options, I find that he could have asked Mr. Phan to drive him to safety or to a police station. He could have sought the same of a driver of any of the other vehicles that were fleeing the scene. He could have run into the mall to blend in or found a place to hide in the mall or outside and called the police as he hid. All these options would have been lawful and reasonable.
98While the situation was clearly stressful to Mr. Marshall, I am satisfied that he could have and ought to have considered these other reasonable alternatives. The evidence establishes he did not.
c. Mr. Marshall’s role in the incident
99In considering Mr. Marshall’s role in the incident, I must examine the accused’s conduct from the beginning to the end of the ‘incident’ giving rise to the act: Khill, at para. 82; R. v. Willemsen, 2022 ONCA 722 at paras. 22-23. In looking at Mr. Marshall’s actions in a holistic manner from a broad temporal frame, I must weigh the moral blameworthiness of his act in context to determine its reasonableness: Khill, at para. 83. “…[A]n accused’s reckless or negligent decisions preceding a violent encounter may shed light on the ultimate reasonableness of their acts”: Khill, at para. 86.
100Mr. Marshall did not instigate the attack on him by the three men behind the Acura SUV. Nonetheless, his role in the incident was not innocent. I find that he was reckless and had a direct role in creating the inherently dangerous situation in which he found himself. As I explain, his recklessness and the negligent decisions he made caused or at least contributed to the situation in which he found himself, which he says, compelled him to steal the vehicle: Khill, at paras. 86-87. That Mr. Marshall conducted drug deals at this location in the past without incident does not alter my view about his recklessness and the foreseeability of the situation in which he found himself.
101He knew or ought to have known of the dangerousness of the incident. He sought to purchase a kilogram of cocaine from an individual he had never met before. He sought to purchase drugs in an area of a public parking lot where he knew drugs were routinely sold. He agreed, on cross-examination, that it was a dangerous and unpredictable area. He was aware there were gangs around Sheridan Mall, and he knew others carried firearms in this neighbourhood. Knowing these risks, he still voluntarily went to this public place to buy drugs.
102I reject his evidence that he was not expecting any trouble at the drug deal. He brought a loaded handgun with him while subject to a court order prohibiting him from possessing a weapon. A person would not bring a loaded handgun to a drug deal, especially when they were prohibited from doing so, if they were not anticipating the possibility of being robbed or of needing protection. In fact, Mr. Marshall testified that he brought the gun to protect himself.
103From these facts, the prospect of Mr. Marshall being robbed or attacked was foreseeable. It was equally foreseeable that he would need to find a means to escape should the drug deal turn violent. All of these risks were known to Mr. Bailey before he attended the scene to purchase the drugs. Had he chosen not to attend this location to buy drugs, he would have avoided these risks altogether and the need to escape.
104At the scene, Mr. Marshall could have reasonably perceived additional risks from the group of men adjacent to where Mr. Bailey’s Acura SUV was parked. He spoke with the group of men for a few minutes. He did not know any of them, but he did know that they knew Mr. Bailey shortly after meeting them. Aware the area was dangerous and unpredictable, and that there were gangs in this area with individuals who carried guns, a reasonable person in these circumstances would have reassessed the risks of proceeding with the drug deal. Mr. Marshall did not do that. He could have left but chose to proceed to buy drugs from a stranger.
105As he tried to escape, he shot his gun in the air and to the ground to scare others off, without regard to the possibility that innocent members of the public might be injured directly or indirectly by the bullets he shot. These gunshots caused Ms. To to retreat into the backseat of her vehicle. The parking lot was busy with many moving cars and pedestrians, including families, like the Phan/To family.
106Within a few seconds of shooting his gun, Mr. Marshall testified that his first thought to escape was to steal a white SUV that was about to pull out of its parking spot. I pause here to note that, in the context of the commission of a serious drug offence, after firing a gun he unlawfully possessed in a busy parking lot adjacent to a mall with many innocent bystanders, his first thought to escape was to commit a further offence by stealing a car. When that attempt failed, his next thought was to steal a different car – the Toyota Corolla that belonged to the Phan/To family.
107When he arrived at their vehicle, he demanded Mr. Phan get out of the car, and then yanked him out. As Mr. Marshall entered the car, Ms. To opened the rear passenger door to exit the vehicle with their daughter. Mr. Marshall began to reverse the vehicle, not realizing Ms. To and their daughter were in the backseat. Mr. Phan opened then closed the trunk of the vehicle to give his wife and daughter time to escape. Mr. Phan then moved to his wife and daughter adjacent to the rear passenger door when Mr. Marshall quickly reversed the vehicle. The video shows the Phan/To family had to quickly move out of the way to avoid being hit by the car as Mr. Marshall reversed it. Mr. Marshall then drove away in the parking lot and he agreed he did so “as fast as he could.” He admitted that he drove through red lights and was speeding away from the scene because he was concerned about being shot.
108Taken together, Mr. Marshall’s role in the incident reflects utter lawlessness, characteristic of what may be seen in a Hollywood movie about a drug deal “gone south”. He acted without regard for the safety of others or concern for their property, favouring his own safety in a dangerous situation that he had a role in creating. He first response was to engage in a further unlawful act, when other lawful options were available to him. Had he not chosen to purchase drugs in a busy public parking lot, this event would not have transpired.
109In his own words, when asked on cross-examination why he did not immediately go to the police after he stole the vehicle, Mr. Marshall said:
I agreed that I was trying to get away. I was scared. I was terrified. So it’s like I’m going to go to the cops. I already -- I was already on the run. I already knew, okay, I fired my gun in broad daylight in a very populated mall, I knew the cops were going to come and get me. I was in a taxicab. I drove a taxi there. I knew I was going to get arrested. What, you think like I thought I was in like -- I knew I was going to get arrested, that’s all I -- that’s all I need to tell you. I knew I was going to get arrested. Like how am I going to take a taxicab to a mall to go buy a kilo of cocaine, something goes wrong, I fire my gun, and I don’t have a getaway vehicle. I stole someone’s vehicle. I never ran back to the cab. I called the cab with my phone. I stole the vehicle because I needed to get away. I wasn’t thinking, yo, go to the cops. I was scared. I was already wanted. I was thinking, shit, I got reckless on the way. I have things, like I -- I had affairs to take care of. Do you think I’m just going to go and like.... [Emphasis added].
110In assessing Mr. Marshall’s role in the incident, I conclude that the following facts are relevant: His decision to purchase a large quantity of drugs from a stranger in a public parking lot, was reckless and created an inherently dangerous situation for himself and others. He was negligent in his failure to reasonably reassess the risks to himself and others after he came across the group of men who knew Mr. Bailey. He recklessly escalated risks to others by illegally bringing a firearm to a public parking lot and by shooting it. He was hotheaded and acted unreasonably in concluding that his only means of escape was to steal another vehicle.
111His role in the incident exceeded the norms of conduct a member of the community would expect, especially in Toronto known for an epidemic of gun violence and car thefts. An accused cannot be held to a standard of perfection when acting in self-defence. Nevertheless, members of the community would find it abhorrent and contrary to community standards to permit an accused, who was reckless and aware of the risks associated with a drug deal and who brought and fired a loaded handgun in a busy parking lot, to be relieved of criminal liability. This is especially true when committing another offence against entirely innocent bystanders to escape a situation he voluntarily entered and knew was inherently dangerous. As stated by Martin J. in Khill, at para. 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. As the Nova Scotia Court of Appeal suggested in Borden at para. 101, 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.
112Mr. Marshall did not instigate the violent attack on him, but he was reckless in his decision to participate in an inherently dangerous event in a busy parking lot that resulted in the attack on him. He was impetuous in his response. He now seeks to escape criminal liability because the event did not go as he hoped. His role colours the reasonableness of his actions, and significantly militates against his act being reasonable.
d. Use or threatened use of a weapon
113The ASF confirms that two of the men behind the Acura SUV had a weapon, or at least, Mr. Marshall believed they did. One had a knife, and the other a handgun.
114Mr. Marshall also possessed and fired his loaded handgun, first behind the Acura SUV when he acted for a defensive purpose, and again in front of the Acura SUV to scare off others when he shot into the air or the ground.
115Before Mr. Marshall approached the Toyota Corolla, Mr. Marshall says he placed the gun in the pocket of his hoodie. Mr. Phan and Ms. To, in both of their testimonies, said Mr. Marshall was holding a black handgun when he approached the car and demanded Mr. Phan get out of the car. Given the distance and angle at which the CCTV recording was captured, I find the video evidence is inconclusive as to whether Mr. Marshall put his gun in his pocket before he approached the Phan/To vehicle or whether he still had it in his right hand when he arrived at the vehicle.
116Having considered all the evidence, I am satisfied beyond a reasonable doubt that Mr. Marshall was holding his handgun when he approached the Toyota Corolla and demanded Mr. Phan get out of the vehicle.
117Mr. Marshall’s counsel argued it was not possible for Mr. Marshall to have a gun in his hand. Mr. Marshall’s evidence was that he held the bag of cash in his left hand, which is visible from the video evidence, and that he opened the car door with his right hand. Mr. Marshall’s evidence was that he was right-handed, and he could not have opened the door with his right hand while holding the gun. On cross-examination, Mr. Marshall admitted that it is possible for him to have opened the car door with his left hand while holding the bag of cash, although he continued to deny he did so.
118I do not accept Mr. Marshall’s testimony that he put his gun away. He described being terrified and afraid of being shot, not only in the 12 seconds following the initial shooting, but as he continued to speed away from the scene. He said he did not know where the three men went and was afraid the other group of men would come after him in their cars. In his cross-examination, he admitted that he did not put his gun away when he attempted to steal the first vehicle. A person in such fear of others would not put their gun away when it was their only means of defence, and when they suspected others were pursuing them. Mr. Marshall testified that he brought his gun to the drug deal to protect himself. At the time he stole the car, he said his only concern was to preserve his life. It defies common sense and logic that he would put his gun away when he approached the Toyota Corolla, and when he continued to perceive a threat to his life and safety from others. Surely, presenting a gun would almost guarantee his ability to steal a car from its owner, and would be consistent with Mr. Marshall’s only concern of preserving his life.
119I also found Mr. Marshall to be evasive, argumentative, and lacking in credibility. He refused to answer questions put to him repeatedly on cross-examination, despite being instructed by the Court to answer. He offered answers to questions that were not asked of him. He became argumentative at times in his cross-examination. He likely exaggerated the threat posed by the group of men, first testifying that it was 10-15 men, but later saying it was likely around seven. He has a criminal record which includes offences of dishonesty.
120I found Mr. Phan and Ms. To were highly credible witnesses. Neither had a motive to fabricate their evidence. They were both clearly shocked by the event, but both had a clear recollection of seeing Mr. Marshall with a gun when he approached the car.
121Mr. Phan said he put his hands up when Mr. Marshall approached the car, explaining that he would not have put his hands up had he not seen Mr. Marshall with a gun. He said the gun was black and right beside the window, and that Mr. Marshall was holding it with his right hand. He said he recalled hearing a sound of the gun hitting the glass window.
122There were minor points where Mr. Phan’s evidence was incorrect or possibly inconsistent.
123Mr. Phan could not recall that he opened the trunk to the car after he exited the vehicle, although the video evidence suggests otherwise.
124The ASF (at para. 14) states that Mr. Marshall opened the driver side door of the Toyota Corolla, but Mr. Phan said that he opened the door. I agree with the argument from Crown counsel that both can be true – they could have both opened the door at the same time. Mr. Phan also testified that he locked the car doors after the first shots were fired (he noted he initially thought the sound was fireworks). This evidence was not challenged. What Mr. Phan could have meant by “opening the door” was “unlocking the door”. Regardless, Mr. Phan would have had to do something with the door locking mechanism in the vehicle (unlock or open the door) to allow the door to be opened either by him or Mr. Marshall.
125Similarly, the ASF states that Mr. Marshall yanked Mr. Phan out of the car, but Mr. Phan testified that he got out of the car and put his hands up. Again, both versions of evidence can be true. The video shows that Mr. Phan had his hands up as he exited the car.
126In any event, these issues are incidental to the issue of whether Mr. Marshall had a gun. Mr. Phan’s evidence was compelling. He did not exaggerate his evidence, he made admissions when presented with conflicting video evidence, and admitted what he did not know. His evidence around the gun was consistent with Ms. To’s evidence, and he denied colluding with his wife about their testimony. Overall, I found Mr. Phan’s evidence to be credible on whether Mr. Marshall had a gun.
127I found Ms. To’s evidence on whether Mr. Marshall had a gun equally credible and compelling. She said when she heard the noise of what she thought was fireworks, she then saw something drop from the sky. Next, she saw a man running, and she got back into the car with her daughter. When looking through the rear driver’s side window, she saw Mr. Marshall approach the car with a gun in his right hand. She heard him say, “Get out of the car”.
128On cross-examination, while there were minor points of inconsistency or difficulty in recalling certain details (e.g. she could not recall whether her daughter was crying, but Mr. Phan said she was), Ms. To was unshaken in her testimony about whether Mr. Marshall had a gun. In her evidence-in-chief, she gave inconsistent evidence about some of her actions (e.g. whether she returned to the passenger seat of the vehicle rather than the rear passenger seat after hearing the gun shots), but she corrected her testimony after watching the video evidence. She also said Mr. Marshall had an open jacket, but the video evidence showed he wore a closed hoodie. She described seeing part of his hair that was curly, but Mr. Marshall wore a balaclava. Although, Mr. Marshall had braided hair that came down to his ears and it is possible that Ms. To saw a portion of his hair around his face that was otherwise covered by the balaclava.
129These matters are trivial and unrelated to whether Ms. To saw Mr. Marshall with a gun. She denied colluding with Mr. Phan on their testimony. She was adamant and clear in her testimony that she observed him with a gun. I found this aspect of her testimony to be credible. It was an important detail, and one a person would be unlikely to forget from this traumatic event, as compared to other matters where her evidence was less compelling.
130Defence counsel argued that when considering self-defence, the question of whether Mr. Marshall had a gun when he approached the Toyota Corolla is irrelevant. I disagree.
131Section 34(2) of the Code requires the Court to consider “the relevant circumstances of the person, the other parties and the act, including…whether any party to the incident used or threatened to use a weapon”. It is for the trier of fact to weigh the factors under s. 34(2) to determine the ultimate success of the defence: Khill, at para. 42. The weighing of these factors requires considering “proportionality and the availability of other means to respond to the use or threat of force — in every case in which they are relevant, regardless of the genesis of the confrontation or the features of the dispute”: Khill, at para. 46.
132I note that Bellmore J. in Owusu concluded that illegal possession of a gun is a factor to consider when assessing an accused’s role in the incident: Owusu, at para 60.
133Whether Mr. Marshall presented a gun when he stole the vehicle is relevant in assessing the reasonableness of his act of stealing the car. The fact that he presented a gun is an aggravating factor.
e. Size, age, gender, and physical capabilities of the parties
134Counsel agree, as do I, that this is not a relevant factor in this case.
f. Nature and duration of any relationship / communication between the parties
135This is only relevant in relation to Mr. Marshall’s relationship, or more specifically, the lack thereof, with Mr. Bailey and the other men who Mr. Marshall perceived to be a threat to him. Without knowing these men, Mr. Marshall would not know with any certainty the extent to which these men would seek to use force against Mr. Marshall: R. v. Jobe, 2021 ONSC 7508, at paras. 122 and 129. This informs my assessment of whether Mr. Marshall’s act of stealing a car was reasonable.
136Without knowing these men, Mr. Marshall could not assess whether they were likely to pursue him. This suggests any option that resulted in Mr. Marshall getting away quickly with a vehicle was reasonable. However, other options involving hiding until the police arrived would have also responded to the uncertainty these men presented.
g. Nature and proportionality of the person’s response to the use or threat of force
137There are several significant aggravating factors around Mr. Marshall’s response. First, Mr. Marshall’s first response was to rob innocent bystanders of their vehicle at gunpoint. Second, he grabbed Mr. Phan, ordered him to “Get out of the car”, and pulled him forcibly from the driver’s seat. Third, he brandished a handgun, which Mr. Phan must have understood to be a threat, which is why he held up his hands. Fourth, he did not ask Mr. Phan to drive him away from the scene or take him to the police station. Mr. Marshall did not choose this option because, in his words, he knew he was going to be arrested, and he was “already on the run.” And fifth, he said he stole the vehicle because he did not have a getaway car, but again, that he needed a getaway car was because of a voluntary choice he made to engage in reckless and unlawful behaviour in a public parking lot. These factors suggest his response was violent and disproportionate in the circumstances.
138On the other hand, Mr. Marshall did not kill, injure or hold the Phan/To family hostage to get their car, although, both Mr. Phan and Ms. To spoke of how traumatizing the event was. Mr. Marshall left the car abandoned and undamaged. All of its contents were returned. I balance the absence of these aggravating factors against the previous factors. On balance, I am satisfied that Mr. Marshall’s response was violent and disproportionate.
Conclusion on The Response
139Having considered all of these factors, I am satisfied beyond a reasonable doubt that Mr. Marshall’s act of stealing the Phan/To family of their vehicle was not reasonable. The strongest and most compelling factor that has influenced my decision is Mr. Marshall’s role in the incident, and his culpable behaviour that led to the situation in which he found himself in. As he admitted, he was reckless. A reasonable person, in comparable circumstances, ought to have sought out lawful options that did not involve the commission of a further offence, recognizing their responsibility for the situation in which they created. Such options were available. These could have included seeking a ride from someone to escape, including Mr. Phan, or blending in among the shoppers in the mall, or otherwise hiding until the police arrived.
E. VERDICT
140Accordingly, I find self-defence is not available to Mr. Marshall. I find him guilty of robbery, contrary to s. 344(1) of the Code.
M. SHARMA, J.
Released: January 20, 2026
Amended: January 21, 20261