The Defence Toolkit – April 5, 2020

This week’s top three summaries: R v Darnley, 2020 ONCA 179, R v WM, 2020 ONCA 236, and R v Patterson, 2020 ONCJ 156.

R v Darnley (ONCA)

[March 9, 2020] Charter s.7 and Entrapment - Reasonable Doubt and Inferences in a Criminal Trial - 2020 ONCA 179 [Reasons by Paciocco J.A. with Feldman and Lauwers JJ.A. concurring]

AUTHOR’S NOTE: Sometimes Justices at the superior court level have too much on their plates and criminal law has become very complicated over the past few decades.  Some would say that errors like the one that occurred in this trial with respect to the standard of reasonable doubt and inferences in a criminal trial should never occur despite trial counsel's failures to point them out.  After all the gatekeepers of law are supposed to be the Justices sitting on the bench, not the lawyers making arguments.  In this author's opinion, the call for a unified criminal court (see: Don Stuart's commentary: here) with specialised criminal judges makes good sense (despite the Constitutional difficulties of getting it done).  Expert criminal law justices at the superior court level are a must as they preside over the most serious offences in the criminal code. The imperative to get those cases right is high considering the penal repercussions for the accused, the victims and their families, and the costs of litigation to the taxpayer. 

This case provides an example of a common mistake that occurs at the superior court level where justices preside over civil trials and criminal ones in respect of the standard of reasonable doubt and inferences to be made in a criminal case.  The idea that inferences must arise from proven facts is a concept that arises in civil trials for both sides, but in criminal trials only arises for the Crown. This is because of the foundational concept of the burden of proof on the Crown: beyond a reasonable doubt.  A reasonable doubt can arise from evidence not arising to any standard of proof, but simply not explicitly rejected.  Consequently, so can so can inferences available to the Defence. This case showcases how such a fundamental error can and does occur in criminal courts, particularly at the superior court level.

The case also provides a welcome revisitation to the concept of entrapment. Errors were made here on the standard upon which a person's virtue is to be tested by the Court's after the fact.  The court instructed the jury that it should be on the level of whether a similarly placed person "would have" committed the state-manufactured offence. However, the law is more permissive than that.  The defence is available if a similarly placed person "might have" committed the state-manufactured offence. 

Pertinent Facts

[1] The Crown charged Kara Darnley, an Ontario Provincial Police peace officer, with criminal offences relating to two events, what I will call “the witness record incident” and “the drug investigation file incidents”. The Crown theory is that, in both incidents, Cst. Darnley abused her position as a peace officer out of loyalty to her fiancé, Jody Vanier, whom the police suspected of involvement with illicit drug use.

[9] On December 20, 2010, Cst. Darnley, while off duty, attended her fiancé’s apartment, which he shared with his roommate, Mike Drozdoski. She, her fiancé, and Mr. Drozdoski socialized with Mark Jeffrey and his partner Christine Kuyvenhoven, the couple that resided in the next apartment. Later that evening, Ms. Kuyvenhoven called 9-1-1 about Mr. Jeffrey but was too intoxicated to speak. She handed the phone to Cst. Darnley who acknowledged when asked that she was a police officer. OPP officers attended the residence and Mr. Jeffrey was charged with domestic assault. The police also found 400 grams of marijuana in Mr. Jeffrey’s apartment.

[10] Based upon concerns with Cst. Darnley’s off-duty activities stemming from her relationship with her fiancé, including one incident where she allegedly transported her fiancé and his drug supplier to an alley to drop something off, the Ontario Provincial Police launched an investigation of Cst. Darnley....

Facts Relevant to the Beyond a Reasonable Doubt Error

[11] ...on March 25, 2012, the eve of Mr. Jeffrey’s trial, Cst. Darnley accessed electronic police records and printed the witness statements that police had collected during the Jeffrey investigation. She solicited Cst. Fischer’s assistance when the printer jammed.

[14] ...The central issue at the trial, and the only factual issue in contest on this charge, was whether Cst. Darnley released or disclosed the statements to any of the witnesses.

[15] The Crown presented no direct evidence that she had done so. It relied instead on the testimony of Cst. Fischer that Cst. Darnley admitted that she had printed the statements so that her fiancé and his roommate Mr. Drozdoski would know what other witnesses had said, and that her fiancé and Mr. Drozdoski looked at the statements.

[16] Cst. Darnley did not testify in her own defence. She defended the allegation by urging that Cst. Fischer was not credible, and that the Crown had failed to prove that Cst. Darnley had released or disclosed the statements to witnesses.

[17] Building on other evidence in the case, Cst. Darnley’s trial counsel also raised the suggestion that Cst. Darnley may have printed the statements in the public interest, so that the witnesses could review their own statements before testifying. If there was a reasonable doubt about this, Cst. Darnley would be entitled to an acquittal, since, as indicated, the fifth necessary element of the offence of breach of trust is that the accused acted with the intention to use his or her public office for a purpose other than the public good: Boulanger, at para. 58.

[18] Specifically, Cst. Darnley’s trial counsel relied upon the testimony of Sgt. Lloyd, an officer involved in the investigation of the charges against Mr. Jeffrey. The officer testified that the police generally make sure that witnesses have a chance to review their own statements before testifying, but he had no recollection of preparing the witnesses personally, nor could he confirm that someone else did so in connection with Mr. Jeffrey’s trial. Cst. Darnley was not subpoenaed to testify at Mr. Jeffrey’s trial the way a civilian witness would be, but instead received an officer notice. She was directed by the Crown to attend as a police witness, and she did so in full police uniform. Moreover, Cst. Darnley had made no attempt to hide the fact that she was printing the witness statements, even asking Cst. Fischer, whom she had known at that point for only two days, to assist her with a paper jam when printing the documents.

[19] The jury convicted Cst. Darnley of breach of trust...

Facts Relevant to the Entrapment Error

[20] ... The police decided to conduct an “integrity play”, and then another due to a technical malfunction during the first.

[21] A fake investigation file was created and placed in a yellow folder entitled “Confidential Drug Targets, Wasaga Beach”. The folder was also labelled with the names of three of her fiancé’s friends. Reports and photographs were placed in the file, suggesting that surveillance was being conducted on the men.

[22] On June 10, 2012, the file was left on the detachment photocopier. A concealed camera was trained on the area. That evening, when no one else was present, Cst. Fischer, while wearing a recording device, sent Cst. Darnley to the photocopier. Cst. Darnley discovered the file. She was alarmed, having recently parked her car at one of the target homes. In her conversations with Cst. Fischer, she expressed uncertainty about what to do and wondered whether she should say anything to her fiancé. Cst. Fischer offered to go with her if she decided to tell her fiancé. Cst. Darnley decided to photograph the file, and Cst. Fischer offered to be a lookout. With Cst. Fischer’s encouragement, Cst. Darnley checked the CPIC printouts in the yellow folder to determine when the investigation began, and Cst. Fischer reassured Cst. Darnley that the file would not have been planted intentionally. Cst. Fischer made comments that could be taken to be discouraging Cst. Darnley from approaching Sgt. Lloyd, the purported investigator of the surveillance file.

[23] Later that evening, Cst. Darnley admitted that she had called her fiancé to warn him not to hang out with his friends anymore. When the shift ended, she invited Cst. Fischer to her home. Her fiancé was asleep and Cst. Fischer again assured Cst. Darnley she would be a “second voice” if she decided to talk to him. The next day, Cst. Darnley acknowledged to Cst. Fischer that she had talked to her fiancé and had showed him the photographs of the file. She said that she had asked him not to say anything to anyone about them.

[24] Since the camera that was meant to record Cst. Darnley’s discovery of the yellow folder had malfunctioned, police decided to conduct a second integrity play. On June 18, 2012, a box marked with the names of her fiancé’s friends, and the title “Lloyd’s Surveillance Box” was placed on a filing cabinet in the criminal investigation office. Cst. Darnley discovered the box and Cst. Fischer served as a lookout so that Cst. Darnley could examine and photograph the contents of the box. Again Cst. Fischer made comments to allay Cst. Darnley’s concerns that the box may have been planted.

[25] The following evening, June 19, 2012, Cst. Darnley searched Sgt. Lloyd’s desk, but found nothing. Then Cst. Fischer accompanied Cst. Darnley home after Cst. Darnley decided to speak with her fiancé. Cst. Fischer taped the conversation. In that conversation, Cst. Darnley’s fiancé declined Cst. Darnley’s invitation to see the photographs, they discussed who could be providing information to the police, and Cst. Darnley warned him to stay away from the suspected men and commented that she was telling him about the investigation “to protect me and you”.

[26] Cst. Darnley was arrested on July 4, 2012. Her phone was searched and the photos she took were secured, along with a text she had sent to Cst. Fischer confirming that she had advised her fiancé about the contents of the surveillance box.

[29] After the jury convicted Cst. Darnley on this count, she moved that the charge be stayed. She said that the integrity plays exceeded the acceptable limits of police conduct by entrapping her. Entrapment can occur in two ways, either: (1) “the authorities provide an opportunity to persons to commit an offence without reasonable suspicion or acting mala fides”; or (2) “having a reasonable suspicion or acting in the course of a bona fide inquiry, they go beyond providing an opportunity and induce the commission of an offence”: R. v. Mack, 1988 CanLII 24 (SCC), [1988] 2 S.C.R. 903, at p. 959. Cst. Darnley argued both branches in the alternative. On May 17, 2016, the trial judge dismissed the motion.

The Misdirection on Reasonable Doubt

[31] These are the impugned passages from the trial judge’s “reasonable doubt” direction. The contentious words are underlined:

(1) A reasonable doubt is a real doubt that logically arises from the evidence or the lack of evidence. It is a doubt based on reason and common sense after considering all of the evidence as a whole. It may be a doubt created by an inference or conclusion you have drawn from the facts as you find them, provided that the inference or conclusion is not a speculation or guess, but a much stronger conclusion arising from the proven facts and based on the evidence alone.

(2) If your doubt is about something you have imagined or made up, or if it is a far-fetched doubt, then it is not a reasonable doubt. If it is a doubt based on sympathy or prejudice, then it is not a reasonable doubt. It must be a doubt about an essential element of the offences charged, and must arise from the evidence. [Emphasis added.]

[32] The Crown concedes that both of the underlined passages are in error.

[33] First, a reasonable doubt need not arise from the evidence: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 28. It can arise from the absence of evidence, from what the Crown has failed to prove: R. v. Lifchus, [1997] 3 S.C.R. 230, at para. 36.

[34]      Moreover, an inference need not arise from “proven facts”, which is “a standard that is never applicable to an accused”: R. v. Robert (2000),2000 CanLII 5129 (ON CA), 143 C.C.C. (3d) 330, at para. 17 (Ont. C.A.). This is because a reference to “proven facts” suggests an obligation to establish those facts to a standard of proof, yet a reasonable doubt can arise from evidence that, while not proven to be true to any standard of proof, has not been rejected.

[35]      It is also incorrect to link a reasonable doubt to a “conclusion” drawn from the facts. An acquittal need not be based on a conclusion about innocence but can rest on an inability to conclude guilt.

[36]      It is also an error to suggest that an exculpatory inference must be “a much stronger conclusion” than a speculation or guess. That language imports the need for a strong inference, when an exculpatory inference relating to a required element of the offence need merely raise a reasonable doubt: Villaroman, at para. 20.

[39] First, the trial judge provided a precise and misleading direction about drawing exculpatory inferences, and she linked reasonable doubt to evidence-based conclusions. These errors go to the very concept of a reasonable doubt. They cannot be corrected by admonitions to give the accused the benefit of the doubt.

[43] I would allow this ground of appeal from both convictions.

The Error in Entrapment

[60] Cst. Darnley argues that the trial judge erred in law in identifying the legal standards to be applied in determining whether entrapment occurred, specifically, whether the police went beyond providing her with an opportunity to commit an offence by inducing the commission of an offence. Cst. Darnley argues that the trial judge: (a) improperly reasoned that peace officers must be held to elevated standards of moral restraint or fortitude; and (b) misunderstood the average person inquiry by asking whether any OPP officer faced with the two integrity scenarios would inevitably have been induced to commit the breach of trust.

[61] I would find that both errors occurred. They are contained in the ultimate paragraph of the trial judge’s analysis:

The question is whether the “average person” should be ascribed the same “strengths and weaknesses” as the particular accused, in this case a police officer. I think that this must be so, as the test suggests that we are to consider the scenario as viewed through the eyes of someone “in the position” of the accused. The hypothetical average citizen may not, for example, understand all of the repercussions of the release of confidential police information and may not be fully apprised of an OPP officer’s duties to uphold his or her sworn oath of secrecy and oath of office. As a result, he or she may find it understandable that Darnley could be easily lured to reveal confidential information to her fiancé. But another officer, in the same position as Darnley, is not likely, in my view, to come to the conclusion that any OPP officer faced with the two integrity scenarios would have inevitably been induced to commit a breach of trust given his or her knowledge of their obligations. [Emphasis added.]3

[62] It is convenient to begin with the second error identified by Cst. Darnley, namely, the trial judge’s misunderstanding of the average person inquiry. This is a key inquiry in determining whether the police went beyond providing an opportunity to commit an offence and induced the commission of an offence. It involves asking “whether an average person, with both strengths and weaknesses, in the position of the accused would be induced into the commission of a crime”:  Mack, at pp. 959, 966. Based on this inquiry, if the average person, with strengths and weaknesses, in the position of the accused “might also have committed the offence”, this inquiry supports a finding of entrapment: Mack, at p. 979. This is not the standard the trial judge applied. She asked instead whether an OPP officer “faced with the two integrity scenarios would have inevitably been induced to commit a breach of trust given his or her knowledge of their obligation” (emphasis added). This is a more exacting test than should have been applied.

[65] The second problem is that, in her inquiry, the trial judge applied an improper conception of the relevant strengths of the average person by effectively concluding that a police officer must be taken to have elevated standards of moral restraint and fortitude....

[69]      As indicated, the relevant inquiry examines whether an average person, with both strengths and weaknesses, in the position of the accused would be induced into the commission of the crime. Naturally, to give context to the inquiry, the hypothetical average person must be contemplated to be a police officer engaged in the relevant policing activity. In the criminal negligence context, R. v. Porto, 2016 ONSC 7353, 3 M.V.R. (7th) 334, aff’d 2018 ONCA 291, 23 M.V.R. (7th) 1, illustrates that a police officer engaged in the course of his or her duties in executing a high-speed response to an emergency has created an elevated risk of danger that heightens the care required. Similarly, in the criminal negligence context, an officer trained in the use of firearms may be expected to exercise that training in dangerous circumstances: R. v. Gosset, 1993 CanLII 62 (SCC), [1993] 3 S.C.R. 76. In this sense, it is possible to speak of elevated standards for police officers. This was done in Gosset, at para. 39, as well as in both the lower court and appeal decisions in Porto: see 2016 ONSC 7353, at paras. 67, 75; 2018 ONCA 291, at para. 6. For this reason, the trial judge was correct in the entrapment context in considering Cst. Darnley’s knowledge of the repercussions of releasing confidential police information, and that Cst. Darnley encountered the information in police files while on duty at the police detachment.

R v W.M. (ONCA) 

[March 24, 2020] Similar Fact Evidence - Effect of Rehabilitation on Situation-Specific Propensity Similar Fact - 2020 ONCA 236 [Reasons by Strathy C.J.O. with Miller and Trotter JJ.A. concurring]

AUTHOR’S NOTE: Similar fact evidence is presumptively inadmissible because of its tendency to engage the trier of fact in impermissible propensity reasoning.  In other words, it is so dangerous to the process of decision-making that we have a policy against its admission.  However, this case is concerned with what happens after it is admitted in a non-identification based application.  In such an application, the Crown is relying on situation-specific propensity to support the Mens Rea/Actus Reus components of the charge before the court.  Here, the Crown tried to suggest that the accused was more likely to have committed sexual interference because he had done it before in similar circumstances. 

The case provides a reminder that when a court is asked to consider such evidence, they have to consider the good with the bad.  That is, they must consider the effect of subsequent rehabilitation on the accused's likelihood to commit the offence charged. To be sure, that is a nebulous concept to gauge.  How much more or less likely is the person to engage in similar offending behaviour?  Is it enough to pass the hurdle of beyond a reasonable doubt?  Nonetheless, this case provides an argument for the defence to resist the propensity-based conclusions advanced by the Crown both at the admissibility stage and at the trial weight stage.

Pertinent Facts

[1] The appellant appeals his convictions for sexual interference and sexual assault of his daughter, who was approximately four years and ten months of age at the time of the offences. A stay was entered in relation to the second count. He was sentenced to four years’ imprisonment and ancillary orders were made.

[3] The child’s mother testified that the incident came to light after the Children’s Aid Society (“CAS”) informed her that the child had engaged in sexualized behaviour at school. The mother had some knowledge of her husband’s past, discussed below, which prompted her to ask her daughter, “did daddy touch your vagina?” The child replied, “yes”. The mother told the child that if her father ever touched her again, she should run and get her. The mother ultimately notified the police, and the appellant was charged.

[4] Shortly after the alleged incident, the child made a video statement. It was admitted in evidence at trial and she adopted it as true. She said that her father had touched her vagina with his hand, over her pyjamas, while he was standing beside her bed. She claimed that she had screamed for her mother, who came into the room and said, “Did dad touch your vagina again?” She replied “yes”.

[7] The appellant testified and denied the allegations.

[8] The trial judge admitted similar fact evidence of offences that the appellant pleaded guilty to in 1998:

a. between 1985 and 1987, when he was 13 to 15 years old, he sexually assaulted a three to fiveyear-old child he was babysitting, lifting her night clothes and touching her vagina;

b.  between 1995 and 1997, when he was 23 to 25 years old, he sexually assaulted a five to sevenyear-old child, going into her bedroom while she was sleeping, exposing her body and touching her vagina.

[10] The appellant testified that he himself had been sexually abused as a child while in the care of the CAS. He said that he knew what he was doing was wrong at 13-15 years old, but he did not appreciate just how wrong it was. He said that he better understood the wrongfulness of his actions in 1995-97 when he was 23-25 years old, but nevertheless did what he knew to be wrong because of the sexual gratification he received. However, the 1998 conviction drove home for him how wrong it was. He testified that he was “a changed man” as of 1998 because of his better understanding and his resolve to change.

[11] The appellant testified that he had received sex offender treatment while in custody at the Ontario Correctional Institute for the 2000 convictions. He testified that prior to commencing the sex offender course, he underwent phallometric testing, and his understanding of the results was that he was not a pedophile. He also said that the treatment “helped him learn how to … better understand the feelings of others, to be accountable to the victims, and to learn how to empathise, to have victim empathy.” He looked at his “own triggers … and stressors, and why [he] did what [he] did.” In addition, the appellant testified that as a result of the motor vehicle accident that resulted in his 2000 conviction, he had suffered physical injuries that affected his ability to get an erection and left him unable to experience sexual gratification in the way he had before.

Judge's Misapprehension of Evidence

[21]      A new trial is required when the appellant has met the “stringent standard” for determining whether a misapprehension of evidence resulted in a miscarriage of justice, as set out in R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514, at p. 541, see also R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at paras. 1-2. Specifically, the misapprehension of evidence must go to substance rather than detail, it must be material rather than peripheral to the reasoning, and the errors must play an essential part not just in the narrative of the judgment, but in the reasoning process resulting in a conviction: Lohrer, at para. 2. If the appellant can show that the conviction was based on a misapprehension of evidence, the appellant is entitled to a new trial “even if the evidence, as actually adduced at trial, was capable of supporting a conviction”: Morrissey, at p. 541.

[23]      The trial judge’s reasons quoted above, at para. 17, contain a misapprehension of the evidence. The uncontested evidence was that the appellant received sex offender treatment in the Ontario Correctional Institute while he was in custody in 2000, not in 2008. Based on the factual error with respect to the date of treatment, the trial judge also found that it was “implicit” in the appellant’s evidence that he still needed treatment in 2008, ten years after his previous offence.

[24] The misapprehension of evidence affected the trial judge’s reasons for conviction in two interconnected ways: (1) it led the trial judge to find that the appellant’s propensity to offend was likely active in 2015, when the offences were alleged to have occurred; and (2) the trial judge found, implicitly, that the treatment did not reduce the probative value of the similar fact evidence.

The Effect of Rehabilitation on Situation-Specific Propensity Similar Fact

[25] The trial judge found the fact that the appellant required sex offender treatment in 2008 was evidence that his propensity was still active in 2008, and therefore, the propensity was likely active in 2015, the time of the charged offences. This factual error led the trial judge to believe that there was evidence of an ongoing propensity that persisted for a 23-year period (from 1985 to 2008). This mistaken finding of fact factored into the trial judge’s rejection of the appellant’s evidence that he had benefitted from treatment and was confident that he would not re-offend as a result.

[27]      Second, the factual error affected the weight of the similar fact evidence. This is because treatment could be viewed as an “intervening event” that diminished the probative value of the similar fact evidence: see R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 132. The trial judge correctly recognized this in his reasons, stating that treatment “logically does tend to diminish the significance of the situational-specific propensity”. However, the factual error would have impacted the trial judge’s assessment of treatment as an intervening event.

[28] ...In actuality, the appellant had received treatment eight years earlier, meaning 15 years had passed between treatment and the charged offences more than twice as long as the trial judge believed. This is a material length of time that would have affected the trial judge’s assessment of the appellant’s evidence that he had benefitted from treatment, and relatedly, the extent to which treatment could be considered an “intervening event” that diminished the probative value of the similar fact evidence.

[30] I would allow the appeal and order a new trial.

R v Patterson (ONCJ)

[March 24, 2020] – Self Defence and the History of the Parties in a Domestic Assault – 2020 ONCJ 156 [Justice K. Caldwell]

AUTHOR’S NOTE: This case provides a rare example of past domestic violence incidents being helpful to an accused on a domestic assault charge. In most circumstances, such facts are inadmissible because they amount to bad character evidence or are simply irrelevant to what occurred on the alleged date of the offence.  However, the codified self-defence provisions at s. 34(2)(f) and (f.1) require a court to consider the history of the relationship and the history of actions and communications between the parties. This makes good sense as those factors can influence whether the perception of imminence of the use of force is reasonable and whether the resorted to force is a proportionate response to the threat. Most often, this type of history is a minefield for the defence. This case gives some idea of how to navigate it successfully.  Of note is the truly amazing way in which the complainant in this case had convinced herself that she had been the victim in the relationship. Lawyers, including Crowns have to be careful to question the confident claims of some to being a victim.

Pertinent Facts

[2] This case unfolded over eleven days of court time. The principal witnesses were Mr. Patterson and Dr. Nash. The reasons for the unusually protracted proceedings were two-fold. First, a third-party records application was brought which I largely denied though I ordered some records released. The second and more significant reason was that the nature of the defence involved delving in detail into the couple’s marriage, particularly previous acts of violence.

[3] Mr. Patterson admits that he hit his wife three or four times with his fist on July 8, 2018. Those hits caused significant damage as reflected in both photos and medical records. Mr. Patterson argues that his actions were motivated by his need to defend his three-year-old son Thomas whom Dr. Nash was removing from the family home at the time of the incident.

[4] Factually, the couple agree on a great deal of their prior history. Dr. Nash also testified that any violence on her part towards Mr. Patterson was done in self-defence. I reject that claim on her part and find as a fact that she inflicted significant violence on Mr. Patterson on occasions that clearly did not involve self-defence though I accept that she honestly holds the contrary belief.

Prior Incidents of Violence - the History

December 15, 2015

[53] I find that Dr. Nash used some force when Mr. Patterson was snoring. I make this finding based on his own testimony and based on her admission at one point in her evidence that she punched him. I also find that Dr. Nash repeatedly punched Mr. Patterson on the inner arm area and that she was not restrained by him when these punches landed on him as the very act of restraining her would have prevented these injuries. I find that he punched her either reflexively when she woke him up or deliberately at some point in the midst of the blows that she was landing on him. Further I find that she bit him very severely during the course of the incident, either in retaliation for the punch or while he managed to grab one of her arms.

April 2017

[55] I find that Dr. Nash kicked and punched Mr. Patterson when she got off the hotel elevator while holding Thomas [their son]. I make this finding on the basis of Mr. Patterson’s clear evidence, Dr. Nash’s admission that this may have occurred, and her own description of the extent of her rage.

March 15, 2018

[56] It is not disputed that Dr. Nash bit Mr. Patterson, broke his watch when pushing his arm, and ripped his shirt with her teeth while biting him. Dr. Nash said that Mr. Patterson leaned over her, with his arms up at his side and his teeth bared. I find that during the course of this interchange between them it is likely that actions akin to that described occurred given his anger over her drinking.

[57] I find that it is more likely than not that her actions flowed from her anger at Mr. Patterson’s accusations regarding her drinking rather than an anticipation of violence given his physical stance. I make that finding given that the evidence does not reveal any physical violence initiated by Mr. Patterson on any prior occasions.

[58] I reject Dr. Nash’s evidence that the bite occurred when he blocked her attempt to leave the home. I reject this evidence given that it was clear from the evidence of both that Mr. Patterson left the home that night. It would make little sense for him to block her exit and then leave himself when that just gave her full opportunity to do what she contends he was trying to prevent her from doing namely, leave.

April 22, 2018

[60] As already noted above, there is no dispute about this incident. Dr. Nash admitted that she pinched and kicked him, and then pulled at him when he tried to walk away after stopping the car.

Other Findings

[61] I completely reject Dr. Nash’s evidence that her physical violence towards Mr. Patterson was always done in self-defence though I accept that she honestly holds this belief.

[62] Dr. Nash testified that her actions flowed from the emotional abuse she suffered and Mr. Patterson’s repeated threatening action of leaning over her, teeth bared, arms extended to his sides. I accept that Mr. Patterson is physically much larger than Dr. Nash. It is clear, however, from her own evidence that her physical assaults towards him flowed either from her own anger at him or her upset when he would attempt to leave her physically. I make this finding based upon the following:

 Her evidence that the December 15, 2015 incident began because she was angry at his snoring;

 Her evidence that the April, 2017 incident flowed from her fury at the comments he made to her brother;

 Her evidence that the April 22, 2018 incident flowed from her anger during their argument over the March 15th incident and her frustration when he began to walk away.

The Incident Charged: July 8, 2018

[63] There is a great deal of agreement between Mr. Patterson and Dr. Nash regarding what happened that day. The primary areas of disagreement are: (1) whether Mr. Patterson punched Dr. Nash in the kitchen or on the back porch and (2) whether Dr. Nash screamed at Mr. Patterson and Ms. Richardson regarding the alleged affair.

[64] I find as a fact that the punches occurred out on the back porch though I find that little if anything turns on this conclusion. I also find that Dr. Nash’s conclusion that it occurred in the kitchen resulted simply from an imperfect memory of that night as opposed to any attempt to mislead the Court.

[65] I reach the conclusion that the punches happened on the back porch because this conclusion fits with the physical blood evidence, and because it also fits with the onlookers’ evidence which I accept – Dr. Hroch and Ms. Trace both made observations of both parties on the back porch and those observations appear to have been made right after Dr. Nash was hit.

[66] I also find as a fact that Dr. Nash was screaming very loudly at Mr. Patterson and Ms. Richardson outside the restaurant regarding the alleged affair. I note that all parties including Dr. Nash now acknowledge that there was absolutely no merit whatsoever to Dr. Nash’s affair contention....

Self-Defence

[68] Section 34 of the Criminal Code outlines when self- defence is applicable. If Mr. Patterson believed on reasonable grounds that Dr. Nash threatened force against him or Thomas, and if his response (punching Dr. Nash) was done in order to defend or protect himself or Thomas, and if that response was reasonable in the circumstances, then he is not guilty of assaulting Dr. Nash by punching her.

[70] The Court must determine if the punches were reasonable by looking at the relevant circumstances of both Dr. Nash, Mr. Patterson, and the act itself. Nine factors to consider are listed in section 34(2). The nine factors are not an exclusive list but simply factors to be considered along with other factors the Court deems relevant: ...

(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;

(f.1) any history of interaction or communication between the parties to the incident;

Application of the Law

What was the Threat?

[73] First, there was some comment in the trial about Mr. Patterson fearing that his own safety was threatened, particularly given the fork. My understanding, however, is that the defence is not arguing that Mr. Patterson was defending himself but that he was defending Thomas and I am proceeding with the analysis on that basis.

[74] Secondly, one might ask what was the threatened force? Dr. Nash was a mother removing her son from the home. Mr. Patterson is not suggesting that Dr. Nash physically harmed Thomas nor is he suggesting that she verbally threatened to do so. In fact, he maintained throughout his evidence that she is a good mother to Thomas and it is clear that he wants them to fully co-parent Thomas. What, then, was the threatened force?

[75] Mr. Patterson testified that Dr. Nash previously threatened self-harm if he called the police again. He also testified that he was in the process of calling the police shortly before Dr. Nash attempted to leave with Thomas. Further, he testified that her behaviour that night was highly aggressive and that she did not appear to be thinking clearly. I understand the argument to be that the act of removing Thomas from the family home was, in Mr. Patterson’s mind, threatening towards Thomas given Mr. Patterson’s belief that she could imminently self-harm and given her aggression and lack of mental clarity that evening.

Did Mr. Patterson believe that Force was Threatened and was that Belief Reasonable?

[77] I accept Mr. Patterson’s testimony that he subjectively believed that Thomas’ safety potentially was at risk that night. I reach this conclusion for the following reasons:

 that Dr. Nash had threatened to kill herself if Mr. Patterson called the police again;

 that Dr. Nash’s earlier behaviour that evening had been very volatile;

 that Dr. Nash had slashed Mr. Patterson’s pants minutes earlier and that she did this act in order to hurt him as he cared about his clothing;

 that Ms. Trace saw Mr. Patterson pick Thomas up and bring him inside. I have already found as a fact that the punches occurred on the back porch. I also find as a fact that Ms. Trace saw Mr. Patterson pick Thomas up immediately after punching Dr. Nash as that timing fits logically with the other evidence put forth in this case.

[78] Dr. Nash’s very public allegation that Mr. Patterson and Ms. Richardson were having an affair was very aggressive and illogical in the circumstances. Similarly, exiting the home and yelling loudly that she was being accused of having schizophrenia was similarly confusing and concerning behaviour.

[79] Mr. Patterson testified that Dr. Nash had never done anything akin to deliberately slashing his clothing before. In her own testimony, she agreed that she was trying to hurt him by destroying something he cared about.

[80] I have also found as a fact that she threatened to self -harm if he called the police again.

[81] The combination of the earlier aggression, the threat to destroy something he cared about and the threat to self-harm all lead me to conclude that Mr. Patterson subjectively did fear for Thomas’ safety if Dr. Nash left with him that night. Further, the fact that he immediately picked Thomas up and re-entered the family home after punching Dr. Nash further substantiates his contention that he punched her not out of anger but out of a desire to keep Thomas at home.

[82] I have also considered the admissible comments he made to the police via 911 and in the police car after the fact, and the comments he made to neighbours. I am well aware that he did not comment on any fears regarding Thomas. I put limited weight, however, in his statements at that point in time. Both Dr. Nash and Mr. Patterson clearly were in shock right after this event – not much if any weight should be placed upon any omissions in their statements given at that time.

[83] I also find that his belief was reasonable. The reasons I just gave for concluding that he had the subjective belief are the same reasons I have for concluding that the belief was reasonable.

Did Mr. Patterson Inflict the Force to Protect Thomas?

[85] For the reasons given above, I also find that the reason Mr. Patterson struck Dr. Nash was for the purpose of protecting Thomas.

Were Mr. Patterson’s Actions Reasonable in the Circumstances?

[86] I find that this branch of the legal test for self-defence is the most challenging in this case. It is also the branch that is most informed by the prior history of the parties.

[88] A cursory examination of this case would lead one to question how Mr. Patterson’s actions could ever be reasonable. After all, Mr. Patterson clearly is the larger of the two parties – he is at least a foot taller and, though not broad, he is larger than the diminutive Dr. Nash. Further, the photographic evidence of her injuries was shocking – two very black eyes swollen completely shut, and extensive blood on her face. I confess, at the outset of this case I too wondered whether the Crown would have much of a hurdle to overcome in disproving the defence beyond a reasonable doubt. Fortunately, however, judges don’t make their decisions at the outset but only after they have had an opportunity to hear and fully consider all of the evidence.

[90] The previous violence and nature of that violence also were striking. I accept that Dr. Nash genuinely holds the belief that she was the one who was abused throughout the marriage. One of the most troubling features of this case, however, is that a dispassionate assessment of the previous incidents reveals a totally different picture. As I have already outlined above, the incidents of previous violence were initiated by Dr. Nash, not by Mr. Patterson. That finding does not settle the issue, of course, as it doesn’t entitle the recipient of past violence to take any steps regardless of proportionality but that fact strongly informs the analysis.

[91] I also find that the nature of the threat was serious given that it involved their child and the threat was imminent as Dr. Nash was about to leave the home with Thomas.

[92] Mr. Patterson had reasonable concerns for Thomas’s safety that evening. It is clear that Dr. Nash was determined to leave with Thomas. The blows he struck were done in quick succession and I draw the inference that they stopped once Thomas was released. I draw that inference from both their own testimonies and from the evidence of Ms. Trace.

[93] Mr. Patterson also was acting almost immediately after his clothing had been slashed. That very act, and the reasons given, were extremely disturbing.

[94] Ms. Samberg argued that there were other avenues available to Mr. Patterson. He may have reached the same conclusion if he had had the luxury of time to calmly reflect. Perhaps, for example, he would have run ahead of her and continued to block her path regardless of which route she chose to take. Perhaps the punches would have been of lesser force or open handed. I find that simply grabbing Dr. Nash and attempting to hold her was not a viable option given his previous experiences; I’ve already commented on the severity of the bite mark he received during the December, 2015 incident.

[95] It is also important to remember that the law doesn’t require Mr. Patterson to weigh the degree of force to a nicety.  Such a requirement would fly in the face of the nature of most confrontations that involve potential self-defence.  As our Court of Appeal noted in R. v. Cunha, “the court must be alive to the fact that people in stressful and dangerous situations do not have time for subtle reflection”.[2]

[97] I find that the Crown has not disproved that the force used was reasonable in the circumstances given the imminence and severity of the threat, the prior history of violence perpetrated upon Mr. Patterson and the logical limitations this history placed on his options, the previous threat of self-harm, and the extremely disturbing act of cutting up his pants and the reasons given for that act.

[99] I therefore find Mr. Patterson not guilty of the charge.