CITATION: R. v. Freeman, 2026 ONSC 441
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
JESSIE FREEMAN Defendant
COUNSEL:
Paul Kenney, for the Crown
Broqachel Wu, for the Defendant
HEARD: September 8-12, and November 18-19, 2025
REASONS FOR JUDGMENT
MCVEY J.
Introduction
1Jessie Freeman was tried before me on a three-count indictment alleging assault causing bodily harm, impaired operation of a motor vehicle, and having a blood alcohol concentration exceeding the legal limit within two hours of operating a motor vehicle, contrary to sections 267(b), 320.14(1)(a) and 320.14(1)(b) of the Criminal Code, respectively.
2The Crown alleges that on the afternoon of April 15, 2023, Mr. Freeman was impaired by alcohol while operating his ATV on 3rd Concession Road with his friend, Colin Mills. Mr. Freeman lost control of his ATV, causing it to overturn near the complainant’s property. After righting the vehicle, Mr. Freeman parked the ATV on Hay Dor Lane—a road running through the complainant’s property—and approached the complainant demanding permission to ride his ATV on the complainant’s farmland. The complainant refused, explaining that ATV use could damage the soil and disturb his livestock. According to the complainant, Mr. Freeman was drunk, aggressive, and refused to take no for an answer. Following a prolonged verbal dispute during which the complainant repeatedly asked both men to leave his property, Mr. Freeman struck the complainant in the face with such force that the complainant fell to the ground unconscious. The Crown further alleges that Mr. Freeman proceeded to kick the complainant multiple times while he lay motionless on the ground.
3Mr. Freeman left the scene immediately after the incident and returned to his father‑in‑law’s cottage where he was staying. He remained there until his arrest approximately one and a half hours later. Mr. Freeman was also arrested for impaired operation of a motor vehicle and provided two suitable samples of his breath later that evening pursuant to a lawful demand, resulting in truncated readings of 220 mg and 230 mg of alcohol per 100 mL of blood.
4Much of the incident between Mr. Freeman and the complainant was observed by the complainant’s neighbours and his wife, who captured photographs of Mr. Freeman, Mr. Mills, and their ATVs throughout the altercation. The complainant’s wife was on the phone with 911 for most of the confrontation up until paramedics arrived on scene.
5The complainant was transported by ambulance to Kingston Hospital, where he remained overnight. He sustained a serious concussion with lasting effects that continue to impact him today. His injuries included one eye swollen shut, multiple facial fractures—including a displaced eye socket—and a significant bump on the back of his head. He experienced dizziness for approximately a week, with symptoms persisting for up to a year during sudden movements. Following discharge from the hospital, the complainant attended numerous follow-up appointments for facial and ocular injuries and engaged in therapy to address emotional and psychological challenges arising from the incident.
6The well-known principles in W.D. apply to these proceedings: R v W.D., [1991] 1 S.C.R. 742. If I believe the exculpatory evidence, I must acquit Mr. Freeman of the alleged offences. Even if I do not believe that evidence, if I am nonetheless left in a reasonable doubt by it, I must also acquit. Even if I am not left in a doubt by the exculpatory evidence, I must still go on and ask myself whether the Crown has proven its case beyond a reasonable doubt on the evidence I do accept.
7I must not resolve this case by simply deciding which version of events is more believable. Further, I appreciate that I must acquit if, after careful consideration of all the evidence, I do not know who to believe. Naturally, such uncertainty would amount to reasonable doubt.
8When evaluating the exculpatory evidence, however, I do not consider it in complete isolation but rather in the context of the evidence as a whole: R. v. J.J.R.D., [2006] O.J. No. 4749 at para 53; R. v. Vigon-Campuzano, 2022 ONCA 234, at para 38; R v C.L., 2020 ONCA 258, at para 30. As explained by the Ontario Court of Appeal in R v A.J.K., 2022 ONCA 487, at para 32:
There is nothing inherently wrong, and much right, with a trial judge contrasting and comparing evidence with an accused’s evidence. Engaging in this kind of contrast and comparison does not in and of itself reflect a misplacement of the burden. To the contrary, engaging in this exercise will often reflect a proper consideration of an accused’s evidence in light of the evidence as a whole, including a complainant’s evidence: (citations omitted)
9At all times, the Crown bears the burden of proving its case beyond a reasonable doubt. I will begin my analysis, as is customary though not mandatory, with the exculpatory evidence, specifically, that of Mr. Freeman.
Defence Evidence
Mr. Freeman
10Mr. Freeman testified that he had not consumed alcohol prior to the confrontation with the complainant on April 15, 2023, and he was sober during the incident; therefore, his ability to operate his ATV could not have been impaired by alcohol. He stated that he spent the afternoon doing renovation work at his father-in-law’s cottage until approximately 5:30–6:00 p.m., after which he and Mr. Mills left on ATVs to inquire about a potential renovation job at a cottage owned by a friend of his father-in-law. The cottage was located on the waterfront off Hay Dor Lane, a roadway running perpendicular to 3rd Concession Road and crossing the complainant’s property by way of an easement. According to Mr. Freeman, as he approached Hay Dor Lane on his ATV, the complainant shouted, “Uncle Jessie,” which startled him and caused him to overturn his ATV when he turned in the complainant’s direction.
11Mr. Freeman testified that while he was attempting to right his ATV on 3rd Concession Road, the complainant approached him in an aggressive manner, yelling and swearing, and accused him of trespassing. Mr. Freeman stated that he did not engage the complainant at that point because he was focused on getting his ATV upright. After remounting his ATV, he turned onto Hay Dor Lane, parked the vehicle, and approached the complainant on foot in an effort to de‑escalate the situation and explain why he was there.
12Mr. Freeman testified that the complainant remained belligerent, angry, and aggressive toward him, and that as a result he was frightened of the complainant throughout their interaction. Mr. Freeman further testified that the complainant eventually told him, “you’re fucking dead,” and intentionally struck Mr. Freeman’s ATV with his tractor, causing significant damage that Mr. Freeman said he noticed for the first time several days later.
13Mr. Freeman testified that, after the complainant struck his ATV with the tractor, the complainant pushed him to the ground approximately three or four times. According to Mr. Freeman, each time he attempted to regain his footing, the complainant pushed him down again. Mr. Freeman testified that, on the last occasion, as he was trying to get up from the ground, he threw what he described as a single defensive punch, striking the complainant in the face.
14Mr. Freeman further testified that he then immediately fled to his ATV, dislodged it from the tractor, and returned to his father‑in‑law’s cabin. He stated that he was “pretty freaked out” by what had occurred and that, during the approximately 90‑minute period before police arrived, he consumed somewhere between three and five vodka coolers, three to five shots of whiskey, and possibly a beer. Mr. Freeman acknowledged that he was intoxicated when police arrested him at his father‑in‑law’s cabin at approximately 8:15 p.m.
15In my view, Mr. Freeman’s testimony is fraught with contradictions—both internal and external—and, in many respects, his narrative defies logic and common sense. For the reasons set out below, I do not accept Mr. Freeman’s evidence. Nor does it raise a reasonable doubt with respect to any of the counts on the indictment, either standing alone or when assessed cumulatively with the other exculpatory evidence.
16First, Mr. Freeman’s evidence concerning how and why he flipped his ATV is nonsensical. He testified that he lost control of the ATV because the complainant startled him by yelling “Uncle Jessie” after Mr. Freeman had lost sight of Mr. Mills driving down 3rd Concession Road. I do not accept this explanation.
17Both the complainant and Mr. Freeman testified that they had a prior confrontation during the 2022 Labour Day weekend after Mr. Freeman’s nephews rode their ATVs on the complainant’s property. At that time, the boys told the complainant that their “Uncle Jessie” had given them permission to ride there. It is undisputed that the complainant later attended Mr. Freeman’s father‑in‑law’s cabin with the boys to speak with “Uncle Jessie” and to advise him that neither he nor his nephews had permission to ride on the complainant’s land. Both Mr. Freeman and the complainant described that exchange as contentious, although each attributes the aggression to the other. In any event, that prior incident provides context for the events of April 15, 2023, in particular, it explains why the complainant might utter the phrase “Uncle Jessie” upon seeing Mr. Freeman.
18Mr. Freeman testified that, although he and Mr. Mills left his father‑in‑law’s cottage at the same time on April 15, 2023, he lost sight of Mr. Mills during the drive to Hay Dor Lane. He claimed that he only became aware that Mr. Mills had turned onto Hay Dor Lane and was speaking with the complainant when he allegedly heard the complainant shout, “Uncle Jessie.”
19I do not accept this evidence. There is no reasonable explanation for Mr. Freeman losing sight of Mr. Mills during what was a relatively short ride. Even if Mr. Mills had travelled somewhat ahead of him, the photographs in evidence show a clear sightline between 3rd Concession Road and the complainant’s property. Mr. Mill’s ATV, parked on the complainant’s property with him on it, would have been readily visible to any sober and even minimally attentive ATV operator driving down 3rd Concession Road, particularly if that driver were looking for Mr. Mills.
20I find that Mr. Freeman was fully aware that Mr. Mills had turned onto Hay Dor Lane—something he either observed directly or would easily have noticed shortly thereafter—but was unable to safely make the turn himself because he was under the influence of alcohol. The ATV flipped because of the combined effect of Mr. Freeman’s lack of attention and impairment, not because he lost sight of Mr. Mills and was later startled by the sound of the phrase, “Uncle Jessie.”
21I also find it implausible that merely hearing the phrase “Uncle Jessie” would cause a sober person to lose control of and overturn an ATV, particularly given Mr. Freeman’s demonstrated comfort level operating such a vehicle. Mr. Freeman was comfortable travelling at approximately 40 km/h on a public roadway without a helmet, suggesting a level of familiarity and confidence inconsistent with his account. The suggestion that such a momentary auditory distraction would cause him to flip a stable ATV defies logic and common sense. If that were so, far less stable vehicles would be overturning with alarming frequency on ordinary roads.
22Second, I reject Mr. Freeman’s evidence that the complainant refused to allow them to proceed down Hay Dor Lane and that this was the source of the ensuing conflict. I have no difficulty concluding that, had Mr. Freeman and Mr. Mills simply wished to travel down Hay Dor Lane to inquire about a cottage, the complainant would not have attempted to stop them. Indeed, if that had been Mr. Freeman’s genuine purpose, there would have been no reason for Mr. Freeman to stop and engage with the complainant in the first place as absolutely nothing prevented him from mounting his ATV and driving down Hay Dor Lane.
23The complainant testified that Hay Dor Lane was a longstanding easement over his property used by cottage owners to access their lakeside properties. He was accustomed to vehicles travelling along the laneway for this purpose and took no issue with it. I have no difficulty accepting this evidence, as it is entirely logical. He further testified that had Mr. Freeman and Mr. Mills simply driven down Hay Dor Lane, it would not have concerned him in the slightest. This explains his puzzled response to the defence suggestion that he prevented them from leaving, which he rejected as illogical, noting that “if they were going to the cottages, they could have just gone there.”
24Indeed, Mr. Freeman’s father‑in‑law testified that he at times drove down Hay Dor Lane to visit his close friend, Terry Pilon, and would customarily wave to the complainant as he passed. He also testified that the complainant occasionally assisted he and Mr. Pilon by using his tractor to free their trucks when they became stuck in snowbanks near the water. I am satisfied that the conflict between the parties had nothing to do with a simple desire on the part of Mr. Freeman and Mr. Mills to travel along Hay Dor Lane. Rather, it arose from their insistence on riding their ATVs on the complainant’s property—an account that, as I explain in greater detail below, accords with common sense and is supported by the evidence of the complainant, his wife, and neighbouring residents.
25Third, and relatedly, I do not accept Mr. Freeman’s evidence concerning his reasons for approaching the complainant after righting his ATV. Mr. Freeman testified that he did so to “defuse” the situation and explain his intentions. This evidence is both internally inconsistent and inconsistent with the balance of the evidence before me. Mr. Freeman had already testified that immediately after the ATV flipped on 3rd Concession Road, the complainant approached him in an aggressive manner, yelling and swearing. On Mr. Freeman’s own account, the complainant was in a combative frame of mind, and there was no objective basis to believe that a second approach would defuse the situation. Moreover, at that point there was no need to “defuse” anything at all. Nothing prevented Mr. Freeman or Mr. Mills from proceeding down Hay Dor Lane to view the cottage—had that truly been their intention—once Mr. Freeman’s ATV had been righted.
26Mr. Freeman’s evidence that he wished to defuse the situation—despite such intervention being entirely unnecessary—also runs counter to his own evidence that he was afraid of the complainant. Mr. Freeman testified that he believed the complainant was “a little crazy,” that the complainant had threatened him in the past, and that he did not know whether the complainant had a gun, given that he was a farmer and likely hunted. Notwithstanding these stated fears, Mr. Freeman chose to approach the complainant on his property after the complainant had purportedly already acted aggressively and accused him of trespassing, rather than simply proceeding down Hay Dor Lane as planned. This is so despite Mr. Freeman’s own evidence that he knew he had the right to travel on Hay Dor Lane without the complainant’s permission. Indeed, Mr. Freeman testified that he told the complainant, “I have a right to be here. I’m going down to the cottages. You do not own it.” Mr. Freeman was therefore fully aware that there was no necessity to engage the complainant at all. Given these circumstances, Mr. Freeman had no reason to approach or confront the complainant if his only intention was to travel to the cottages—especially since he claimed to fear the complainant and already knew the complainant was angry and confrontational.
27Further, the photographs taken by the complainant’s wife during the incident undermine Mr. Freeman’s evidence regarding his asserted fear of the complainant. The images depict Mr. Freeman as highly agitated and undoubtedly angry as he advances toward the complainant on what is clearly the complainant’s property. His face appears flushed, his fists are clenched, and his demeanour is overtly threatening. These photographs do not depict an individual who is frightened or someone attempting to de‑escalate a volatile situation.
28Rather, I find that Mr. Freeman approached the complainant because he wished to ride his ATV on the complainant’s farmland and was angry that the complainant would not permit it. This finding is consistent with the balance of the evidence, which establishes that the complainant simply wanted the men to leave his property, and it explains why Mr. Freeman saw fit to engage the complainant at all. The suggestion that the complainant would have refused them passage along Hay Dor Lane is nonsensical. The evidence is simply clear that the laneway was used daily by others without incident.
29Fourth, I reject Mr. Freeman’s evidence that the complainant caused significant damage to his ATV using the tractor. Although Mr. Freeman testified that the complainant inflicted a “large gash the length of the tractor bucket” on the ATV, he provided no photographic evidence to support this claim. This omission is notable given that Mr. Freeman retained possession of the ATV for several months if not years following the incident, prior to allegedly repairing it and subsequently selling it.
30I also note Terry Pilon’s evidence that Mr. Freeman left the area on his ATV immediately after striking the complainant. Although Mr. Pilon was not specifically asked about this, his evidence did not include any observation of the tractor being lodged against the ATV, nor of Mr. Freeman having to free the ATV before departing, as Mr. Freeman claimed.
31Further, the complainant’s wife testified that although the complainant did threaten to use his tractor to forcefully remove the ATVs from the property if the men did not leave voluntarily, this was a bluff on his part and the complainant stopped short of touching the ATVs. She testified that once it became apparent that the threat would not prompt the men to leave, the complainant moved the tractor away from the ATVs and parked it near the shed, out of the way.
32As I explain in greater detail below, I found the complainant’s wife to be an impressive and credible witness, and I accept her evidence on this point. I also note that none of the neighbours who observed various aspects of the incident testified to seeing the complainant strike Mr. Freeman’s ATV with the tractor. In fact, Tamara Lachance, a neighbour who observed much of the incident, testified that she heard the complainant threaten to drive the ATVs off the property using his tractor and observed him mount the tractor, but that he did not follow through with his threat. Her impression was that the complainant was exasperated and stressed because the males were not listening. Ms. Lachance’s evidence is consistent with that of the complainant and his wife on this point.
33Fifth, Mr. Freeman’s evidence concerning his alleged injuries was problematic in several respects. His account shifted between examination‑in‑chief and cross‑examination; aspects of his narrative were internally inconsistent and, at times, defied logic and common sense; and parts of his evidence on this issue were contradicted by the testimony of his father‑in‑law.
34Mr. Freeman testified that he sustained injuries during the incident and had difficulty breathing. Despite this, upon returning to his father‑in‑law’s cottage, he did not call 911 or otherwise seek medical attention. When pressed on this point in cross‑examination, particularly in relation to whether he had in fact sustained the injuries he claimed, Mr. Freeman testified that he had every intention of attending the hospital later that evening and would have done so had the police not arrived, explaining that his chest injuries were “freaking him out.” By contrast, Mr. Freeman’s father‑in‑law testified that Mr. Freeman told him at the cottage that he planned to seek medical care but only after returning to Hamilton the next day.
35Further, despite Mr. Freeman’s evidence that he was in pain upon returning to the cottage and in need of medical attention, he did not mention any injuries to the arresting officers. He does not appear injured or otherwise uncomfortable during his arrest which was captured on video footage. Moreover, while manoeuvring his large frame into the back seat of the police cruiser with his hands cuffed behind his back, Mr. Freeman does not exhibit any sign of injury or make any related complaint. I further observe that, in the photographs taken by the complainant’s wife during the incident, Mr. Freeman does not appear to be injured or experiencing any discomfort.
36Finally, Mr. Freeman initially testified that he immediately went to the hospital when released from jail. He also testified that he screamed in agony while in the cellblock over night until his release the following morning. However, he later stated in cross-examination that he could not recall the exact moment he sought medical assistance but that it was not until he returned to Hamilton. Therefore, despite supposedly screaming in agony all night while in the cellblock, on release, Mr. Freeman returned to his father-in-law’s cottage, packed his things, and returned to Hamilton by car before seeking out medical care. This evidence changed yet again when Mr. Freeman testified that he was not even certain that he sought out medical care on the same day that he returned to Hamilton.
37Sixth, Mr. Freeman testified that was frightened of the complainant as the dispute progressed, particularly after he was pushed to the ground multiple times. Despite this professed fear, he testified that after he delivered what he described as a single “defensive” punch, he walked to his ATV to free it, and “didn’t really look back,” such that he did not see what occurred behind him. I find this account difficult to accept. If Mr. Freeman was genuinely afraid of the complainant and had just struck him, one would reasonably expect him to be vigilant and to monitor whether the complainant was following him to the ATV. His evidence on this point strains credibility.
38Seventh, Mr. Freeman testified that the complainant’s wife was also hostile and was “egging” her husband on throughout the confrontation. I reject this evidence. The complainant’s wife was the individual who called 911 and remained on the line throughout the incident in the hopes that police involvement would prompt the men to leave. During this time, her three children— the eldest of whom was eight years old—were home alone across the street. Prior to Mr. Freeman and Mr. Mills arriving, she and the complainant were simply engaged in farm‑related chores on their own property. I find it nonsensical and inconsistent with the evidence as a whole that the complainant’s wife wished to prolong or inflame the confrontation.
39Eighth, Mr. Freeman’s evidence regarding his alcohol consumption after the incident is wholly inconsistent with that of his father‑in‑law. Mr. Freeman testified that he consumed between three and five vodka coolers, three to five shots of whiskey—despite stating that he does not like whiskey—and possibly a tallboy can of beer. His father‑in‑law, while acknowledging he could not be certain, testified that he believed Mr. Freeman consumed approximately one‑third of a 40‑ounce bottle of whiskey and six tallboy beers.
40For the above reasons, I do not accept Mr. Freeman’s evidence, nor does it give rise to a reasonable doubt. This conclusion remains unchanged even when his evidence is considered alongside the other evidence said to be exculpatory. I turn next to the evidence of his father‑in‑law, Glenn Addison, and family friend, Terry Pilon.
Glenn Addison
41Mr. Addison is Mr. Freeman’s father-in-law. He was not present during the altercation itself and therefore has no direct evidence to offer regarding what occurred between Mr. Freeman and the complainant. He did, however, testify that when Mr. Freeman returned to the cottage, he appeared “visibly shaken and nervous” and complained of pain in his ribs. To be clear, I have no difficulty accepting that Mr. Freeman sustained some injury as a result of flipping his ATV. I do not, however, accept his evidence that he experienced the severe pain and agony he later described in his evidence. Mr. Addison further testified that he did not see Mr. Freeman consume any alcohol before departing on his ATV the day of the incident.
42I do not accept Mr. Addison’s evidence regarding Mr. Freeman’s alcohol consumption, whether before or after the incident, nor does it raise a reasonable doubt in my mind on either of the driving-related counts.
43Mr. Addison’s evidence regarding Mr. Freeman’s post‑incident alcohol consumption is not only markedly inconsistent with Mr. Freeman’s own evidence on that issue, but also implausible and unreliable. I reject it. First, Mr. Addison acknowledged that he was intoxicated at the relevant time and had no firm recollection of how much alcohol he himself had consumed. In those circumstances, it is difficult to understand how he could have a reliable or accurate memory of the quantity of alcohol Mr. Freeman allegedly consumed during the same period. There was no reason for him to be keeping track of it.
44Second, the volume of alcohol Mr. Addison claimed Mr. Freeman consumed within a time frame of approximately one-and-a-half hours is inherently unbelievable. I do not accept that Mr. Addison would have passively observed his son‑in‑law—whom Mr. Addison understood to be injured—consume what would amount to an extraordinarily large and undoubtedly dangerous quantity of alcohol, namely thirteen shots of whiskey and six tallboy beers, within a short period of time.
45Mr. Addison’s evidence was also inconsistent with that of Mr. Freeman regarding what Mr. Freeman allegedly said upon returning to the cottage. Mr. Addison testified that Mr. Freeman specifically told him that “Shawn Mack” had attacked him. In cross‑examination, Mr. Addison remained adamant that Mr. Freeman had used the complainant’s name when recounting the incident. This evidence is difficult to reconcile with Mr. Freeman’s testimony that he was not even aware of the complainant’s name until he was formally charged.
46Finally, as explained in more detail below, having rejected Mr. Addison’s evidence regarding Mr. Freeman’s post‑incident alcohol consumption for independent reasons, the Intoxilyzer readings—and the conclusion that Mr. Freeman had a blood alcohol concentration exceeding 80 mg of alcohol in 100 mL of blood at the time of the incident—remains unshaken. This provides an additional basis for rejecting Mr. Addison’s assertion that Mr. Freeman had not consumed any alcohol prior to leaving the cottage, which further undermines his credibility and reliability.
47In summary, Mr. Addison did not impress me as an unbiased witness striving to provide an independent and objective account of his observations. He was admittedly under the influence of alcohol himself—confirmed by the video footage of Mr. Freeman’s arrest where he was visibly intoxicated and confrontational with arresting officers—when he made his purported observations after the incident. Moreover, Mr. Addison is very close to Mr. Freeman and would have a strong reason to tailor his evidence in a manner favourable to him.
48For the reasons given, I do not accept Mr. Addison’s evidence that Mr. Freeman did not consume alcohol before the incident or that he excessively consumed it afterwards, nor does Mr. Addison’s evidence leave me with a reasonable doubt as to whether Mr. Freeman had been drinking before driving his ATV to Hay Dor Lane.
49Rather, for reasons set out further below, I accept the evidence of the complainant, who testified that Mr. Freeman appeared to be under the influence of alcohol based on his behaviour and the smell of alcohol on his breath. I also accept the evidence of Tamara Lachance, who testified that the individual who assaulted the complainant was unsteady on his feet and appeared intoxicated. Pre‑incident alcohol consumption by Mr. Freeman—contrary to Mr. Addison’s evidence—is consistent with the observations of both the complainant and Tamara Lachance, observations I accept as accurate, as well as with the ATV accident, which occurred in otherwise fine weather and road conditions. It is also consistent with the Intoxilzyer readings taken later that evening.
Terry Pilon
50Mr. Pilon is a childhood friend of Mr. Freeman’s father‑in‑law and owns a cottage near the water off Hay Dor Lane. He has known Mr. Freeman for approximately ten years. Mr. Pilon had been at Mr. Addison’s cottage on Quaker Hill Road on occasions prior to the incident and was fully familiar with its location. Mr. Pilon was at his own cottage off Hay Dor Lane when Mr. Mills arrived and told him that Mr. Freeman and the complainant were fighting at the top of the hill. Mr. Pilon knew Mr. Mills and was aware that he was Mr. Addison’s nephew.
51Mr. Pilon testified that he immediately drove his truck to the top of the hill to investigate. Upon his arrival, he observed Mr. Freeman on the ground. Mr. Pilon stated that he then saw the complainant push Mr. Freeman to the ground a second time which prompted him to tell the complainant to stop fighting. Mr. Pilon further testified that he turned to instruct Mr. Mills to stay out of the altercation. When he turned back, he observed the complainant attempt to push Mr. Freeman again, at which point Mr. Freeman regained his footing and punched the complainant in the face.
52Mr. Pilon testified that Mr. Freeman left the scene on his ATV within seconds of striking the complainant. Mr. Pilon made no reference to Mr. Freeman having to dislodge his ATV from the complainant’s tractor bucket before doing so.
53In examination‑in‑chief, Mr. Pilon testified that after Mr. Freeman struck the complainant, he remained at the scene to administer first aid. He confirmed this evidence again in cross‑examination. However, when the Crown later asked whether he had ever left the scene and then returned, Mr. Pilon stated for the first time that he had gone back to his cottage to retrieve a blanket and then returned to assist the complainant.
54Mr. Pilon further testified that he came within two to three feet of Mr. Freeman during the incident and did not detect any odour of alcohol, although he acknowledged that he was not specifically looking for it in the circumstances.
55I have concerns about Mr. Pilon’s reliability and credibility. In cross‑examination, Mr. Pilon acknowledged that in April 2023, Mr. Freeman’s father‑in‑law, Mr. Addison, was one of his closest friends. Standing alone, that relationship would not necessarily be problematic. Witnesses are often not entirely independent and have some connection to the persons involved. However, when considered together with the nature of Mr. Pilon’s interactions with police immediately following the incident, his close relationship with Mr. Addison raises concerns about the extent to which he may be willing to go to cast certain events in a favourable light. My concern is not limited to what I found to be a lack of candour with police at the scene, but also extends to what I consider to have been a less than forthright explanation of those interactions in his viva voce evidence at trial, which is even more problematic.
56Mr. Pilon was plainly aware of what had occurred during the latter part of the incident, who was involved, and that the complainant had sustained serious injuries. His own evidence confirms as much. He understood that police would have a significant interest in promptly identifying and locating those responsible. Mr. Pilon knew Mr. Mills by name and association and knew that Mr. Mills was Mr. Addison’s nephew. He also knew that Mr. Freeman was Mr. Addison’s son‑in‑law and was aware that Mr. Addison owned a cottage nearby on Quaker Hill Road.
57Despite this knowledge, when asked by police who had struck the complainant, Mr. Pilon stated that it was someone he did not know very well. He did not disclose the identity of Mr. Freeman’s father‑in‑law or the location of Mr. Addison’s cottage. Indeed, he told police that he did not know whether those responsible lived in the area. Further, when asked by police if he knew who the “other guy” was, Mr. Pilon replied that he did not, describing Mr. Mills only as the “small, skinny guy” and Mr. Freeman as the “big guy.” He described them in this fashion notwithstanding his admitted knowledge of Mr. Mills’ name and both Mr. Mills’ and Mr. Freeman’s relationship to his longtime friend, Mr. Addison.
58Clearly, Mr. Pilon was not entirely forthright with the police.
59At trial, Mr. Pilon sought to explain his lack of candour on the basis that he was merely answering the specific questions asked and volunteering nothing further; that he was in shock due to the severity of the complainant’s injuries; and that he did not want the complainant’s wife to become aware of the extent of his connections to those involved. I do not accept these explanations. In my view, Mr. Pilon was evasive with the police out of an immediate sense of loyalty towards Mr. Addison.
60Mr. Pilon could readily have provided police with Mr. Mills’ name and advised them of the relationship between “the big guy” and Mr. Addison, as well as the location of Mr. Addison’s property. Mr. Pilon is an intelligent man with life experience, and he would have appreciated that this information would be of obvious value to the police, even if it was not expressly or specifically requested. I find that Mr. Pilon was evasive in his dealings with the police and, more concerningly, was not forthright in his evidence before me regarding his reasons for acting as he did.
61As a result, I approach Mr. Pilon’s evidence with considerable caution, and it does not raise a reasonable doubt when assessed against the cumulative persuasive force of the Crown’s evidence, though I entirely appreciate that the burden of proof rests wholly on the Crown.
Crown Evidence
62Although I am not left in a reasonable doubt by the exculpatory evidence led by the defence, that does not end my analysis. I must still determine whether, on the evidence I accept, the Crown has proved its case beyond a reasonable doubt. This brings me to the evidence of the complainant, his wife, and their neighbours.
Shawn Mack
63The complainant presented as a credible witness. His testimony was measured and consistent, free from exaggeration or embellishment, and he freely acknowledged his own aggression in the incident. To be clear, I am not suggesting that a lack of embellishment in the complainant’s evidence enhances his credibility. I am aware that simply because an allegation could have been worse does not render it more likely to be true: R. v. J.L., 2022 ONCA 271; R. v. J.B., 2022 ONCA 214. I am simply noting that his testimony displayed clear signs of candour, with no factors present that would typically undermine credibility: see R v E.A.P., 2022 ONCA 134. Finally, although the complainant displayed occasional frustration during cross‑examination, I find this understandable in light of the circumstances and the experience he has undergone.
64The complainant testified that on April 15, 2023, he was spreading manure on his farm property while his wife was tending to the barn animals across the street, as well as looking after their three children. The complainant and his wife own approximately 120 acres of farmland on either side of 3rd Concession Road. The complainant testified that while he was spreading manure, two ATVs made their way up 3rd Concession Road. One turned onto Hay Dor Lane and then entered his property where he was working. The driver of the other ATV, later identified as Mr. Freeman, flipped his ATV while trying to navigate the same turn from 3rd Concession Road onto Hay Dor Lane.
65Mr. Freeman proceeded to right his ATV, park it, and then approach the complainant on his property, as the complainant also made his way over to the males to see what they wanted. The complainant testified that the males were looking for somewhere to ride their ATVs. The complainant advised them that they could not ride their ATVs on his farmland because doing so could damage the soil and frighten the animals. In response, the males insisted that they could drive where they wanted. They asked if anything had been planted yet, and the complainant confirmed that nothing had been planted but ATV use could nonetheless pack down the soil and damage it. The verbal confrontation lasted approximately 15 minutes, during which time Mr. Freeman became increasingly agitated to the point that he started pushing the complainant with his chest, all while insisting that he could ride his ATV where he wanted. The complainant repeatedly told the males to get off his property.
66The complainant testified that he pushed Mr. Freeman back once or twice but only when Mr. Freeman shoved him with his chest. On one occasion, after he gave Mr. Freeman “a light push”, Mr. Freeman fell onto his backside. The complainant attributed Mr. Freeman’s unsteadiness to the fact that Mr. Freeman had, from the complainant’s perspective, clearly been drinking. The complainant testified that Mr. Freeman was slurring his words and smelled of alcohol, and it was otherwise generally apparent to the complainant that Mr. Freeman was drunk: see R v Graat, [1982] 2 S.C.R. 819, at 841.
67At some point during the confrontation, the complainant returned to his tractor and, in an apparent effort to prompt the men to leave, drove it towards Mr. Freeman’s ATV as though he intended to strike it. The complainant adamantly denied, however, actually hitting Mr. Freeman’s ATV. His actions were ultimately ineffective, as Mr. Freeman refused to leave the property.
68The verbal confrontation between the complainant and Mr. Freeman continued. From that point onward, the complainant has no memory of the events. He has no memory of being struck by Mr. Freeman, no memory of the paramedics arriving, and no memory of receiving medical treatment at the hospital until he regained consciousness the following day.
69As noted, the complainant was a compelling witness whose evidence was clear, internally consistent, and supported by the surrounding circumstances and other witnesses to the event. He candidly acknowledged that he had been angry with Mr. Freeman during the Labour Day weekend of 2022, and that during that exchange he yelled and swore back at Mr. Freeman when Mr. Freeman did the same. He also volunteered, in examination‑in‑chief, that he pushed Mr. Freeman away from him once, possibly twice, and that on one such occasion Mr. Freeman fell onto his buttocks.
70I also find credibility in the complainant’s evidence that he has no memory of being struck by Mr. Freeman—an inconvenient omission were the complainant attempting to exaggerate or dishonestly portray Mr. Freeman in the worst possible light. Had the complainant been fabricating his account, one would reasonably expect him to describe the very act that forms the basis of the charge. Instead, he consistently maintained that Mr. Freeman was not physically aggressive at the outset and that solely a verbal confrontation lasting approximately ten to fifteen minutes preceded the violence.
71Further, the complainant’s evidence is materially consistent with that of his wife and with the evidence of the neighbouring residents, whom I consider to be independent witnesses with no apparent motivation to favour either party.
72The complainant’s account also carries an air of truth in the circumstances. The complainant was not seeking a physical altercation: he was outnumbered by at least two to one; his wife and children were nearby; and toward the end of the confrontation, he would have appreciated that his children were effectively unattended, as his wife was with him. I have no difficulty accepting his evidence that all he sought was for the men to leave his property—an account that accords with the evidence of his wife and the general tenor of the evidence of the neighbours.
73The complainant testified repeatedly that there would have been no issue had the men simply wished to drive their ATVs down Hay Dor Lane to access the cottages. Cottage owners regularly used the laneway for that purpose and were legally entitled to do so. Indeed, as noted above, this evidence was corroborated by Mr. Addison, Mr. Freeman’s father‑in‑law, who testified that, although he did not know the complainant personally, he would occasionally wave to him while driving down Hay Dor Lane to visit friends at their cottages.
74The complainant testified that the dispute had nothing to do with the men’s desire to travel down Hay Dor Lane—an act with which he would have taken no objection—but arose from their refusal to leave his property while aggressively and repeatedly insisting that they were entitled to ride their ATVs on it. I accept the complainant’s evidence that he would have taken no issue with the men simply travelling down Hay Dor Lane, as it is logical, internally consistent, and supported by the balance of the evidence.
75As noted, the complainant’s evidence is materially supported by that of his wife and neighbours. I turn now to a review of that evidence.
Wendy Mack
76The complainant’s wife, Wendy Mack, was a persuasive witness. She testified in a calm, measured, and fair manner, without any hint of guile—despite circumstances that would have justified it. She testified that she was tending to her chores on the other side of the farm property with her three children when Mr. Freeman crashed his ATV and ultimately approached her husband in the general area where he was spreading manure. She kept an eye on things from across the road until she felt that circumstances had escalated to an uncomfortable level. At that time, she directed her eight-year-old daughter to take the two younger children inside the house, and she moved across the street to join her husband. She called 911 at the same time in the hopes that doing so might prompt the males to leave. Ms. Mack stayed on the line with the authorities throughout the incident.
77Ms. Mack testified that her husband repeatedly asked the men to leave the property, and that they responded with aggression and name‑calling. She also testified in examination-in-chief that, at one point, the complainant moved one of his tractors closer to Mr. Freeman’s ATV in the hopes that doing so might prompt Mr. Freeman to leave. When that failed, she testified that the complainant moved the tractor away from the ATV and parked it near the shed. Her evidence was unshaken that the complainant never struck the ATV with the tractor. Ms. Mack further testified that Mr. Mills was yelling at both the complainant and Mr. Freeman, telling Mr. Freeman that they should leave.
78Ms. Mack took photographs during the incident of both males and their ATVs. She testified that she turned away from the complainant to take the photographs while she was on the phone with 911. When she turned back, she saw the complainant lying unconscious on the ground, shaking, with blood “coming out of everywhere,” including his mouth. At that time, Mr. Freeman was standing by the complainant’s head and Mr. Mills and Mr. Pilon were standing further away from him. She testified that both Mr. Freeman and Mr. Mills immediately left the property and proceeded down Hay Dor Lane on their ATVs. They returned on their ATVs not long after and continued to yell profanities at her husband as he lay bleeding and unconscious on the ground, a particularly cold and callous act that was memorable to her.
79In examination‑in‑chief, Ms. Mack unexpectedly volunteered that she did not actually see how her husband came to be on the ground. I found this to be a particularly candid aspect of her evidence, one that speaks strongly to her credibility, especially as it was offered unprompted in examination‑in‑chief. Ms. Mack had earlier told police, upon their arrival, that the complainant had been struck by one of the males. When this was put to her in cross‑examination, she explained that, at the time—and in the stress of the circumstances—she had simply drawn a reasonable inference, based on the complainant’s injuries and the surrounding events, that he had been struck, even though she had not actually seen it. I have no difficulty accepting this explanation and do not find that she was attempting to mislead the authorities. As noted, I remain impressed by her candour on this point.
80Nor am I concerned by Ms. Mack’s statement to police shortly after their arrival that the complainant may have hit his head on a rock, notwithstanding that a rock, as distinct from gravel, is not visible near his head in the video. The complainant had clearly sustained a blood-letting head injury, and Ms. Mack was simply drawing inferences about how this may have occurred when she stated, “he hit a rock, I think.” In the circumstances, this statement raises no concerns about her credibility or reliability.
81Ms. Mack’s evidence makes clear that neither she nor her husband were seeking any form of confrontation with Mr. Mills or Mr. Freeman that day. They were simply attending to their chores and caring for their children when Mr. Mills and Mr. Freeman arrived, agitated and hostile. Their only objective was to have the men leave the property. Ms. Mack testified that, contrary to Mr. Freeman’s account, she was not aggressive toward either Mr. Mills or Mr. Freeman and did not encourage or “egg on” her husband. I have no difficulty accepting this evidence. At the time, Ms. Mack’s three children—the eldest of whom was eight years old—were unsupervised at home across the street. I readily accept that her sole concern was to have the men leave the area, and that she had no interest in prolonging or escalating the dispute, or in seeing her husband involved in a physical altercation.
82The evidence of the complainant and Ms. Mack is also generally supported by the observations of their neighbours—Angie Lachance, her adult daughter, Tamara Lachance, and her granddaughter Noella Lachance, now 16 years old—who at the time lived in a home adjacent to where the incident occurred. All three were at home celebrating Noella’s birthday when the interaction between the complainant and Mr. Freeman took place, and each observed different aspects of it.
83As would be expected given that they observed the incident from different vantage points, saw only portions of the interaction, and were testifying more than two years later, there were some discrepancies in their evidence. None of these discrepancies, however, cause me concern regarding their credibility. I find that all three witnesses were doing their best to provide honest accounts of what they observed. Importantly, although they were neighbours of the complainant, all three witnesses testified that they were not particularly close to the complainant or his wife. They do not socialize or interact regularly; and while the children know one another from school, members of the Lachance family did not even know the complainant’s full name. Tamara Lachance testified that she did not believe the complainant even liked her family. In my view, none of these witnesses had an animating bias in favour of the complainant or his wife that might have influenced their evidence.
Angie Lachance
84Angie Lachance testified that she was at home with her family on April 15, 2023, when Tamara came inside and told her that there was a fight outside. Angie exited her residence—which was next door to the complainant’s farm property—through the front door to investigate and testified that she saw one of the males strike the complainant, causing him to fall to the ground. I found her evidence on this point somewhat difficult to discern. At trial, Angie stated that she could not recall the precise manner in which the blow was delivered but maintained that she recalled seeing at the time of the incident the complainant being struck. She testified that she does have a present recollection of the complainant falling to the ground.
85Angie further testified that the male who struck the complainant repeatedly kicked him as he lay motionless on the ground. She clarified, however, that she could not actually see the kicks land due to the height of the grass between her property and the complainant’s. Rather, she inferred that the complainant was being kicked based on the assailant’s body movements, which she testified were consistent with him repeatedly kicking the complainant.
86Angie was unable to hear what was being said between the men. She testified that she observed the complainant fall to the ground approximately five to ten seconds after she came outside and did not observe any other physical contact during that interval. Although Angie recalled that it was the smaller of the two men—who would undoubtedly be Mr. Mills—who punched the complainant, the totality of the evidence, including the evidence of Mr. Freeman and Mr. Pilon, clearly establishes that she was mistaken on that point.
87This rather significant error gives rise to obvious concerns about the reliability of Angie’s recollection, particularly when considered alongside the other admitted frailties in her memory years after the event. As a result, I would not rely on the inculpatory aspects of Angie’s evidence except to the extent that they are confirmed or corroborated by other evidence.
88Angie further testified that, on the evening before she gave her evidence, her daughter, Tamara, told her that the complainant had driven over to their home in his tractor and spoken briefly with her in the driveway. According to Angie, Tamara reported that the complainant said he had testified for approximately three hours and his wife for about two hours, that the people at court were nice, but that he felt some were attempting to suggest that the incident was his fault.
89Tamara reported this interaction to the Crown on the morning of her evidence which is how the parties became aware of it.
Tamara Lachance
90Tamara testified that she owns a cleaning company and, although she cleans the home of the complainant’s parents, she has no other connection to the complainant or his wife beyond living in the same general area. She explained that they are not friends and that she believes that the complainant does not even like her family. On the day of the incident, she recalled hearing shouting and, upon looking out a bedroom window, observed two males on ATVs interacting with the complainant. She testified that she heard the complainant repeatedly ask the men to leave his property.
91Tamara further stated that she went outside and observed the complainant’s wife on the phone, and assumed she was speaking with the authorities. She overheard the complainant threaten to drive the ATVs off the property with his tractor and saw him get onto the tractor; however, Tamara described that the complainant did not follow through on that threat. Tamara testified that the complainant seemed stressed and frustrated because the men were not complying with his requests to leave. She testified that it was at this point that Mr. Mills left the property for the first time, and her impression was that he did so out of concern that his ATV could be damaged. Tamara emphasized that the complainant kept telling the males to get off his property and to go away.
92When the complainant dismounted his tractor, Tamara observed the larger of the two men, that being Mr. Freeman, say “hit me, hit me” and chest‑bump the complainant. She then saw the complainant shove Mr. Freeman in response to being chest‑bumped. At that point, Tamara went inside her residence because she did not want the children exposed to the confrontation.
93When she returned outside a short time later, she was on the phone with 911, having placed her own call. At that point, she observed the complainant on the ground being kicked multiple times by Mr. Freeman. She testified that the complainant was not doing anything and was simply lying motionless.
94Tamara further testified that she believed the muscular man who was kicking the complainant was under the influence of alcohol, based on her observation that he was “wobbly,” was swaying as he walked, and did not otherwise present as sober. She also testified that when Mr. Mills returned with another individual, they were attempting to get the larger, muscular man to leave.
95Tamara explained that she did not see how the complainant came to be on the ground because she had briefly escorted the children back inside the home. She was, however, adamant that when she returned outside, she observed the larger man kicking the complainant as he lay motionless on the ground. She testified that she contemporaneously reported the kicking to the 911 operator.
96In cross‑examination, Tamara was challenged on her statement to police that her mother had observed aspects of the altercation that she had not, and it was suggested that her recollection of the kicking was influenced by what her mother later told her. Tamara rejected that suggestion. She explained that her statement referred solely to the fact that she did not see how the complainant came to be on the ground, and not the kicking.
97I accept this explanation and see nothing suspect in it. I am satisfied that Tamara observed the complainant being kicked. She has a clear recollection of that observation and was entirely unshaken in cross-examination on that point; her mother also recalls kicking, albeit imperfectly; and Tamara’s daughter, Noella—who was an impressive witness—likewise observed kicking and reported it to police at the time she gave her statement, belying the possibility that Noella’s recollections were later tainted by conversations with her mother and grandmother.
98Overall, Tamara struck me as a credible witness. When it was put to her that she was “there to testify for Shawn,” she calmly replied that she was “just here to say what I saw” and that she was “not testifying for either party.” That response was consistent with the measured and impartial tone of her evidence.
99Finally, Tamara testified about the interaction she had with the complainant the evening before her testimony. She stated that he attended her home briefly as she arrived home. He advised her of the length of his testimony and that of his wife and apologized that she and her family had to attend court. She testified that no details regarding her anticipated evidence or his were discussed, and the interaction lasted no more than a minute. She did not recall the complainant saying anything about anyone at Court trying to make it seem like the incident was his fault.
Noella Lachance
100Noella was 14 years of age at the time of the incident. She was home with her family and other friends on April 15, 2023, celebrating her birthday. Noella struck me as a fair and impartial witness. She testified that she knows the complainant only as a neighbour and otherwise has no meaningful familiarity with him.
101Noella recalled that she was on the porch when she first overheard the dispute. The complainant was yelling at the males to get off his property because they were going to bother his livestock. She testified that the ATVs started off on the road, then the laneway, but ultimately were on the complainant’s property near the barn. Noella recalled there being some pushing and shoving but that the complainant was only shoving the other male because he was in the complainant’s space. She described the other male as the primary aggressor. She testified that ultimately the other male shoved the complainant to the ground, and it appeared as though the complainant “got the wind knocked out of him” and he “floated” to the ground. Noella further testified that the same male started kicking the complainant when he was on the ground and banging on his stomach with his feet. Counsel for Mr. Freeman initially put to Noella that she had not told the police about this in her statement, only to be proven incorrect.
102It was also put to Noella that she told the police that after the male had shoved the complainant numerous times, the complainant pushed the male onto the road and when the male got up, he pushed the complainant, and the complainant fell over. Noella acknowledged having said that to the police, however, at trial, she had no recollection of Mr. Freeman falling to the ground as a result of being pushed by the complainant onto the road.
103Noella testified that she observed the complainant speaking with her mother on the evening before she gave her evidence, but that she did not herself speak with him and did not hear what was said. She did, however, candidly offer that, in the weeks leading up to trial, she spoke with her mother and grandmother about the incident because she was feeling anxious about testifying. She explained that she only briefly described what she herself had observed, and that her mother and grandmother merely listened. They did not share with her their own observations of the incident.
104In summary, while the neighbours’ accounts unsurprisingly differ in certain respects and contain some imperfections—particularly given the passage of time—their evidence generally supports that of the complainant and Ms. Mack in material ways. First, their evidence confirms that the complainant’s objective was simply to have the men leave his property, and that the dispute arose from the men’s insistence on remaining there with their ATVs. The complainant was not arbitrarily attempting to prevent them from travelling along Hay Dor Lane to see about a cottage.
105Second, their evidence supports the finding that the complainant was not the primary aggressor. Rather, it was Mr. Freeman who initiated physical contact by chest‑bumping the complainant and repeatedly invading his personal space. To the extent that the complainant pushed Mr. Freeman, even more than once, he did so to create space between them.
106Third, the neighbours’ evidence establishes that Mr. Mills himself made repeated efforts to convince Mr. Freeman to simply leave the property, efforts that Mr. Freeman persistently refused, underscoring that leaving the property was at all times open to Mr. Freeman.
107Fourth, their evidence supports the complainant’s and Ms. Mack’s account that the complainant did not strike Mr. Freeman’s ATV with his tractor, contrary to Mr. Freeman’s testimony.
108Finally, all three neighbours observed kicking or movements consistent with kicking after the complainant lay motionless on the ground. That evidence reinforces the conclusion that the violence committed by Mr. Freeman was motivated by anger rather than any lawful or defensive purpose.
109Lastly, I am not concerned about collusion, notwithstanding that there was some communication among the three witnesses. I reach this conclusion for several reasons. First, it is not unusual for family members or friends who have witnessed a traumatic or violent event to speak about it in general terms in the immediate aftermath. Such communication does not, without more, render subsequent evidence unreliable or inherently suspect. Individuals are capable of hearing another’s account without it necessarily contaminating their own recollections. The same reasoning applies to Noella’s conversations with her mother and grandmother in the weeks leading up to trial. Noella was a sixteen‑year‑old preparing to testify for the first time, was understandably anxious, and sought support from trusted adults. Notably, Noella herself volunteered this information during her evidence, which speaks to her candour. I accept her evidence that her mother and grandmother did not share their own observations with her, but merely listened. I am therefore satisfied that Noella’s testimony was not influenced by any commentary from them.
110I am also satisfied that Noella’s comments did not inadvertently taint the evidence of Angie or Tamara. There are simply no hallmarks of either deliberate or inadvertent collusion in their respective narratives. To the contrary, their evidence contains meaningful differences. Angie did not recall precisely how the complainant ended up on the ground, although she recalled at the time of the incident that she had seen a punch. Tamara testified that she did not observe that portion of the altercation at all. Noella described the act that brought the complainant to the ground as a shove rather than a punch. Further, Angie identified the smaller of the two men, Mr. Mills, as the assailant—a recollection that is plainly mistaken, particularly given that Mr. Freeman himself acknowledged being the individual who was physically involved with the complainant.
111Overall, the differences in these accounts strongly militate against any suggestion of cross‑contamination. The narratives bear no indicia of collusion and instead reflect independent recollections, each with its own limitations.
112Finally, although the interaction between the complainant and Tamara Lachance the evening before her testimony was misguided and unfortunate, it does not undermine my findings of credibility and reliability. The exchange only became known because Tamara advised the Crown about it. As a result, I accept her evidence regarding the nature of the interaction, that being that it was brief and that no details regarding the complainant’s evidence or Tamara’s anticipated evidence were discussed.
Assault causing bodily harm – Count #1
113The sole live issue on this count is whether Mr. Freeman’s conduct was justified pursuant to s. 34 of the Criminal Code. I reach this conclusion because Mr. Freeman acknowledged in his testimony that he punched the complainant in the face, an act that plainly constitutes an intentional application of force. It is also beyond dispute that non‑trivial bodily harm is reasonably foreseeable when a 6’2”, 220‑pound man forcefully punches another person in the face. Finally, although the matter was neither advanced by the defence nor put to the complainant, I reject any suggestion that this was a consensual fight. The complainant’s evidence was clear: he wanted only for Mr. Freeman and Mr. Mills to leave his property, and he only applied force to Mr. Freeman when Mr. Freeman was chest bumping him and aggressively invading his personal space. At no point did the complainant seek or implicitly or explicitly agree to engage in a physical altercation with Mr. Freeman.
114As noted above, I accept the evidence of the complainant and his wife concerning the overall nature of the dispute. The complainant wanted Mr. Freeman and Mr. Mills to leave his property; they refused, asserting instead that they had a right to operate their ATVs on the complainant’s land. I am entirely satisfied that this incident would not have occurred had Mr. Freeman and Mr. Mills simply left the property and proceeded down Hay Dor Lane. I find that Mr. Freeman was the primary and initial aggressor, and the agitator throughout. I further find that Mr. Mills departed the scene not because he believed Mr. Freeman required assistance—Mr. Freeman and Mr. Mills already outnumbered the complainant—but because he was unable to persuade Mr. Freeman to leave. It was for that reason that Mr. Mills rode away on his ATV and returned with Mr. Pilon.
115I find that Mr. Freeman could have left the property on his ATV, unobstructed and unimpeded, at any time during the encounter. Indeed, that was the complainant’s sole objective: to have the men leave his property. I am satisfied that the incident occurred on the complainant’s land, as confirmed by the photographs taken by the complainant’s wife. Further, Mr. Freeman had no lawful right to remain there once the complainant objected to his presence.
116I find that Mr. Freeman approached the complainant in an aggressive and hostile manner, demanding permission to ride his ATV and repeatedly refusing to leave despite being asked to do so. I further find that Mr. Freeman escalated the situation by invading the complainant’s personal space by bumping him with his chest. In response, the complainant pushed Mr. Freeman back to create space between them. On one such occasion, Mr. Freeman lost his footing and fell on his backside. It is unclear to me whether Mr. Freeman struck the complainant immediately as he rose on this occasion, or whether there was some time lapse in between. The complainant testified that there was a gap between the two events, but the complainant himself testified that his memory of the events that immediately preceded the violence was “fuzzy” on account of his injuries. As I will explain, however, even had Mr. Freeman struck the complainant immediately after he fell to the ground, I would still be satisfied beyond a reasonable doubt that his actions were not justified pursuant to s. 34 of the Criminal Code given the totality of the circumstances, in particular, Mr. Freeman’s “role in the incident”: see s. 34(2)(c) of the Criminal Code.
117I am satisfied beyond a reasonable doubt that Mr. Freeman was not acting in self‑defence. The Crown has disproved all three elements beyond a reasonable doubt. First, I am satisfied beyond a reasonable doubt that Mr. Freeman did not reasonably believe that force was being used or threatened against him. Mr. Freeman would have been fully aware that the complainant simply wanted him to leave the property, and that any physical contact by the complainant occurred only in response to Mr. Freeman’s own aggressive conduct, and that if Mr. Freeman left the property the incident would come to an end.
118In any event, I am also satisfied beyond a reasonable doubt that Mr. Freeman did not apply force for the purpose of defending or protecting himself, even assuming he was under a reasonable apprehension that force was being used against him. I find that Mr. Freeman punched the complainant because he was highly agitated and angry at the complainant’s refusal to permit him and his companion to ride their ATVs on the property, not for any defensive purpose. This conclusion is further buttressed by the fact that Mr. Freeman kicked the complainant while he lay motionless on the ground. This additional act of violence supports my finding that Mr. Freeman was motivated by anger, not fear; however, even absent this further violent act, I would still have been satisfied that Mr. Freeman acted in anger rather than in self‑defence given the totality of the circumstances.
119Finally, I am satisfied beyond a reasonable doubt that, even had the punch been delivered for a defensive purpose, and even had it been delivered immediately after the complainant pushed Mr. Freeman and Mr. Freeman fell to the ground, Mr. Freeman’s conduct was not reasonable in the circumstances. Mr. Freeman was the larger individual, though this factor carries only minimal weight given that the complainant was also a man of some size and strength. Mr. Freeman was the initial aggressor and remained the agitator throughout the encounter. He was present on the complainant’s property without permission and refused to leave despite repeated requests. Mr. Freeman had a clear and readily available alternative to the actual or perceived use of force: he could simply have left, exactly as Mr. Mills ultimately did. Mr. Freeman’s act of punching the complainant with such force that he broke numerous bones in the complainant’s face was entirely unnecessary and unjustified in all the circumstances, even if Mr. Freeman did so immediately after the complainant pushed him out of his space.
120Mr. Freeman had no lawful right to “stand his ground” on Mr. Freeman’s property over Mr. Freeman’s repeated objections. He had no right to be there and ought to have departed, as Mr. Mills ultimately had the good sense to do. While I recognize that the law of self-defence does not impose a duty to retreat in all cases, and the defence is in theory available to a provocateur, on the particular facts of this case, retreat was required.
121Further, while provocative conduct does not automatically preclude a claim of self‑defence, it may undermine—or negate altogether—the reasonableness of an accused’s response. In this case, Mr. Freeman had no right to aggressively intrude into the complainant’s personal space on the complainant’s own property and then escalate the encounter by striking him in the face with significant force when the complainant responded only with minimal force for the purpose of self‑protection. Only this conclusion accords with community standards of acceptable conduct. To that end, I find that Mr. Freeman fell to the ground, as described by the complainant, not because the complainant applied significant force, but because Mr. Freeman was unsteady on his feet as a result of his consumption of alcohol, an issue to which I will return shortly.
122As the Ontario Court of Appeal explained in R. v. Khill, 2020 ONCA 151, the role played by an accused in an incident is not confined to the precise moment at which force is used but extends to the accused’s conduct leading up to the confrontation:
Section 34(2)(c) renders an accused's conduct during the "incident" relevant, even though the conduct is not unlawful or provocative as that word was defined in the prior self-defence provisions. The court must consider whether the accused's behaviour throughout the incident sheds light on the nature and extent of the accused's responsibility for the final confrontation that culminated in the act giving rise to the charge. It is for the trier of fact, judge or jury, to decide the weight that should be given to the accused's behaviour throughout the incident when deciding the ultimate question of the reasonableness of the act giving rise to the charge.
[para 76]
123As stated above, I find that Mr. Freeman bore full responsibility for the dispute between himself and the complainant. He initiated the encounter, perpetuated it, and ultimately brought it to its violent conclusion, notwithstanding multiple opportunities to disengage and leave before any violence occurred. This consideration weighs heavily in the analysis and, in my view, is fatal to Mr. Freeman’s claim of self‑defence.
124To be perfectly clear, I find that it was the complainant who acted in self‑defence throughout the incident. In summary, I am satisfied beyond a reasonable doubt that 1) Mr. Freeman intentionally and unlawfully applied force to the complainant; 2) that the complainant was not consenting to the force applied by Mr. Freeman and Mr. Freeman was aware or at least reckless that the complainant was not consenting; and 3) in applying force to the complainant, Mr. Freeman caused him bodily harm in circumstances where non-trivial bodily harm was entirely foreseeable.
125I find Mr. Freeman guilty of count #1.
BAC over legal limit within two hours of operating a conveyance – Count #2
126The Crown alleges that Mr. Freeman had a blood alcohol concentration exceeding the legal limit within two hours of operating his ATV, contrary to section 320.14(1)(b). At trial, the Crown produced a Certificate of a Qualified Technician demonstrating that Mr. Freeman provided two suitable samples of his breath at 22:03 and 22:24 on April 15, 2023, resulting in truncated readings of 220mg and 230mg of alcohol in 100mL of blood.
127Mr. Freeman ceased operating his ATV between approximately 6:00pm and 6:30pm. Unsurprisingly, no witness can pinpoint the exact time of when Mr. Freeman arrived back at his father-in-law’s cottage. The end time of the 911 calls placed by Ms. Mack or Tamara Lachance may have gone some distance in establishing more precise timing but neither was played or otherwise tendered into evidence. With that said, the complainant testified that he was spreading manure in the early evening when the males arrived and that they remained on his property for approximately 30 minutes before Mr. Freeman assaulted him and left on his ATV. The photographs taken by Ms. Mack establish that though evening time, it was still light outside. Further, Ms. Mack testified that the incident started in the evening or late afternoon and lasted approximately 15 minutes. Moreover, Mr. Freeman testified that he left his father-in-law’s cottage at around 5:30 or 6:00pm, drove a relatively short distance to Hay Dor Lane, where he remained for approximately 30 minutes during the dispute with the complainant. He left immediately after the incident and drove his ATV back to his father-in-law’s cottage, where he remained until the police arrived approximately an hour and a half later at 8:15pm. Therefore, I find that Mr. Freeman would have ceased operating his ATV sometime between approximately 6:00pm and 6:30pm.
128Because the first sample of Mr. Freeman’s breath was taken more than two hours after he stopped operating his ATV, and his blood alcohol concentration exceeded 20 mg of alcohol in 100mL of blood at the time of testing, the readback provisions of the Criminal Code are available to determine Mr. Freeman’s BAC during the two hours after he ceased operating the ATV: section 320.31(4) of the Criminal Code. Pursuant to that provision, Mr. Freeman’s BAC for the two hours immediately following his operation of the ATV is conclusively presumed to be 220mg of alcohol in 100mL of blood plus an additional 5mg of alcohol in 100mL of blood for every interval of 30 minutes in excess of those two hours: section 320.31(4).
129Applying this readback provision, if Mr. Freeman ceased operating his ATV even somewhere between 5:30pm and 6:30pm, his blood alcohol concentration in the two hours that followed would have fallen somewhere between 235mg and 245mg of alcohol in 100mL of blood, a concentration well over the legal limit.
130With that said, section 320.14(5) of the Criminal Code states that no person commits an offence under section 320.14(1)(b) if (1) they consumed alcohol after ceasing to operate the conveyance; (2) after ceasing to operate the conveyance, they had no reasonable expectation that they would be required to provide a sample of breath or blood; and (3) their alcohol consumption is consistent with their blood alcohol concentration as determined in accordance with subsection 320.31(1) or (2) and with their having had, at the time when they were operating the conveyance, a blood alcohol concentration that was less than 80mg of alcohol in 100mL of blood.
131Mr. Freeman testified that he consumed no alcohol prior to or during the incident involving the complainant. He stated that he consumed his first alcoholic drink that day after he stopped operating his ATV upon returning to his father‑in‑law’s cottage. According to his evidence, between his arrival home and his arrest by police at approximately 8:15 p.m., he consumed approximately three to five vodka coolers, three to five shots of whiskey, and one tallboy can of beer. To raise an air of reality to the proposition that this post‑driving consumption was consistent with the Intoxilyzer results and a lawful BAC at the time of driving, the defence called expert evidence from Dr. David Rosenbloom: see R v Bell, [2023] O.J. No. 2193 (S.C.).
132Dr. Rosenbloom was qualified as an expert on the absorption and elimination of alcohol in the human body. The Crown did not oppose Dr. Rosenbloom’s qualification as an expert in this area, though rigorously challenged the reliability of Dr. Rosenbloom’s evidence given numerous errors and oversights in his reports.
133Dr. Rosenbloom testified that, presuming Mr. Freeman consumed three vodka coolers, three whiskey shots and one tallboy can of beer in the approximate 90 minutes before his arrest at 8:13pm and no alcohol before that time, then after a consideration of elimination, Mr. Freeman’s BAC at the time of the testing would have been between 33-83mg of alcohol in 100mL of blood depending on his rate of elimination. As a result, even were I to accept Dr. Rosenbloom’s calculations, this narrative comes nowhere close to raising an air of reality pursuant to s. 320.14(5)(c), as Mr. Freeman’s first truncated reading was 220mg of alcohol in 100mL of blood.
134In fairness, Mr. Freeman testified that he could have consumed between 3-5 vodka coolers and 3-5 shots of whiskey, plus a tallboy can of beer between arriving back at the cottage and his arrest. If Mr. Freeman consumed alcohol at the high end of those ranges, Dr. Rosenbloom opined that his BAC at the time of testing would have been between 70-120mg of alcohol per 100mL of blood. This, too, comes nowhere close to invoking section 320.14(5)(c) given the scientifically reliable Intoxilyzer reading of 220mg of alcohol in 100mL of blood taken at 22:03. I say this notwithstanding the fact that consuming 5 vodka coolers, 5 shots of whiskey, and a tallboy can of beer in the time allotted is an implausible and quite frankly unbelievable scenario in the circumstances. I do not accept that evidence nor am I left in a reasonable doubt that Mr. Freeman consumed that amount of alcohol in the time between arriving at his father-in-law’s cottage and his arrest. Though, even if he did, as noted, it would not raise an air reality to section 320.14(5)(c) in the circumstances.
135Finally, Dr. Rosenbloom was asked to opine on the scenario posited by Mr. Addison—a narrative that I firmly reject—that Mr. Freeman consumed approximately 13 ounces of whiskey and six tallboy cans of beer in approximately an hour and a half. Dr. Rosenbloom testified that in that scenario he would expect Mr. Freeman’s BAC to have been between 231 and 281 mg of alcohol in 100mL of blood at the time of testing, which does raise an air of reality to section 320.14(5)(c).
136This evidence gives rise to two related questions, however. The first concerns the reliability of the evidentiary foundation upon which Dr. Rosenbloom’s opinion is based. The second concerns the reliability of the opinion itself, having regard to the errors and carelessness identified by the Crown in Dr. Rosenbloom’s reports, concerns which I share. In my view, however, the applicability of section 320.14(5) can be dealt with by resolving the first of these two issues. I outright reject the evidence of Mr. Addison on the issue of Mr. Freeman’s post-incident consumption for reasons already given.
137Mr. Addison was himself an unreliable witness given his own level of intoxication, his close relationship with Mr. Freeman, and other external contradictions in his evidence. Further, the amount of alcohol Mr. Addison says he passively watched his purportedly injured son-in-law consume defines common sense. The bolus drinking defence now codified in large measure by section 320.14(5) must be approached with an appropriate measure of common sense, including the inherent implausibility of an individual consuming an extraordinarily large and dangerous quantity of alcohol in a brief period following driving: see R v Pascheko, 2010 ONCA 615. I do not accept nor am I left in a reasonable doubt that Mr. Freeman consumed alcohol in anything near a quantity that would have been consistent with his evidence of having a blood alcohol concentration of 0mg in 100mL of blood at the time of driving yet 220mg of alcohol in 100mL of blood at the time of testing. I appreciate that section 320.14(5)(c) requires only that an individual raise an air of reality to the notion that their post-driving consumption is consistent with a lawful BAC at the time of driving (not necessarily a BAC of 0mg in 100mL of blood) and the testing results. However, Mr. Freeman has chosen to lead expert evidence and raise an air of reality to the defence based on having a blood alcohol concentration of 0mg of alcohol in 100mL of blood when he ceased operating a motor vehicle. It is not for me to speculate on what the expert evidence may have been had Mr. Freeman admitted to drinking some amount of alcohol earlier in the day and before the incident, even though for reasons that I will soon address, I am wholly satisfied that he did. Such expert evidence was simply not put before me.
138On the evidence before me, I am satisfied beyond a reasonable doubt that Mr. Freeman had a blood alcohol concentration of over the legal limit within two hours of operating his ATV. A defence was available pursuant to s. 320.14(5) of the Criminal Code However, the Crown has negatived the application of section 320.14(5)(c) by proving beyond a reasonable doubt that Mr. Freeman did not consume alcohol in a quantity sufficient to meet one of the preconditions set out in the section.
139I find Mr. Freeman guilty of count #2.
Impaired operation of a motor vehicle – Count #3
140With respect to the count of impaired operation, although the burden of proof is high—proof beyond a reasonable doubt—the Crown is required to establish only some impairment of the ability to operate a motor vehicle, however slight. It need not prove marked or dangerous impairment, nor that the accused’s driving was unsafe or erratic. A proven impairment, even minimal, satisfies the legal threshold.
141As noted above, I accept the complainant’s evidence that Mr. Freeman appeared to be under the influence of alcohol, while recognizing that the mere consumption of alcohol does not, in itself, establish impairment. The complainant testified that he detected an odour of alcohol on Mr. Freeman’s breath and observed that Mr. Freeman slurred his speech. These observations are consistent with the evidence of Tamara Lachance, who likewise believed that Mr. Freeman was under the influence of alcohol. Ms. Lachance testified that Mr. Freeman appeared wobbly and unsteady on his feet, a description consistent with Mr. Freeman losing his balance and falling when the complainant applied what he described as a “little push.”
142The accounts provided by the complainant and Ms. Lachance regarding Mr. Freeman’s alcohol consumption and presentation are further corroborated by the Intoxilyzer readings, which I have found were not undermined by the evidence of post‑incident drinking and establish that Mr. Freeman had consumed alcohol prior to driving. While a blood alcohol concentration in excess of 80 mg of alcohol in 100 mL of blood at the time of the incident does not, in itself, prove impairment, it does lend support to the indicia of impairment observed by both witnesses. Finally, I am satisfied that Mr. Freeman’s loss of control of the ATV, resulting in it flipping over in good weather and road conditions, constitutes an additional indicium of impairment, particularly given that Mr. Mills had no difficulty negotiating the same turn with the same type of vehicle.
143In summary, Mr. Freeman displayed clear signs of alcohol consumption and impairment and lost control of his ATV in circumstances that did not warrant it. I acknowledge that Mr. Freeman may have been injured to some extent as a result of the ATV crash. However, Mr. Freeman did not testify to having sustained any injuries that would have affected his balance, nor did he state that he was unsteady on his feet, let alone that any such unsteadiness was attributable to the ATV incident. Viewed cumulatively, the evidence leaves me with no doubt that Mr. Freeman’s ability to operate his ATV was impaired by alcohol, at least to a slight degree.
144I find Mr. Freeman guilty of count #3.
McVey J.
Released: January 28, 2026
CITATION: R. v. Freeman, 2026 ONSC 441
COURT FILE NO.: CR-23-00000040
DATE: 20260128
ONTARIO
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
– and –
JESSIE FREEMAN
Defendant
REASONS FOR JUDGMENT
MCVEY J.
Released: January 28, 2026