R. v. Blenman
Between
Her Majesty the Queen, and
Edson Blenman
[2006] O.J. No. 5097
2006 ONCJ 493
72 W.C.B. (2d) 104
Ontario Court of Justice
G. Trotter J.
Heard: July 10, 2006.
Judgment: December 22, 2006.
(28 paras.)
Criminal law — Offences — Offences against person and reputation — Assault — Causing bodily harm — With a weapon — Trial of accused charged with assault with a weapon and assault causing bodily harm — Complainant alleged accused attacked him with two beer bottles — Accused argued he acted in self defence — Accused acquitted — Complainant’s actions in holding beer bottles to accused’s face, accompanied by gun-pointing gesture with fingers and threat uttered constituted assault on accused — Accused’s claim of self-defence justified as immediate response to complainant’s actions — Criminal Code, s. 34(1).
Criminal law — Defences — Self-defence — Trial of accused charged with assault with a weapon and assault causing bodily harm — Complainant alleged accused attacked him with two beer bottles — Accused argued he acted in self defence — Accused acquitted — Complainant’s actions in holding beer bottles to accused’s face, accompanied by gun-pointing gesture with fingers and threat uttered constituted assault on accused — Accused’s claim of self-defence justified as immediate response to complainant’s actions — Criminal Code, s. 34(1).
Trial of accused charged with assault with a weapon and assault causing bodily harm — Accused and complainant involved in altercation at banquet hall — Accused argued self-defence — Complainant argued accused struck him with beer bottles in unprovoked attack causing him facial injuries — Accused claimed that complainant had threatened him and that accused reacted by shoving complainant and beer bottles held by complainant away with great force which was how complainant sustained his injuries —
HELD: Accused acquitted — Court accepted accused’s version of incident — Complainant’s evidence was inconsistent and was unbelievable — Accused’s evidence was confirmed by a friend — Accused’s claim of self-defence justified as immediate response to complainant’s actions in holding beer bottles to accused’s face, accompanied by gun-pointing gesture with fingers and threat uttered — These actions and words constituted an assault on accused — Accused did not intend to injure complainant but only wanted to get complainant away from him — Accused did not provoke assault on himself and did not use more force than necessary in circumstances.
Statutes, Regulations and Rules Cited:
Criminal Code, s. 34, s. 34(1), s. 34(2), s. 34(2)(a), s. 34(2) (b), s. 265(1)(b)
Counsel:
R. Wright and E. Middelkamp for the Crown
R. Rusonik for the Accused
[Editor’s note: A corrected version was released by the Court March 26, 2007; the corrections have been made to the text and the corrigendum is appended to this document.]
REASONS FOR JUDGMENT
1 G. TROTTER J.:– Edson Blenman became involved in an altercation with Devon Fraser at a banquet hall. Mr. Fraser suffered serious facial injuries, caused by a beer bottle. Mr. Blenman was charged with assault with a weapon and assault causing bodily harm. Mr. Fraser said he was the victim of an unprovoked attack. Mr. Blenman claimed that he was acting in self-defence. At the end of the trial, I found Mr. Blenman not guilty and indicated that reasons for my decision would follow. These are my reasons.
FACTS
2 Mr. Blenman and Mr. Fraser were known to each other. They had met a few years earlier at a party. On May 22, 2005, they both attended an “All White Affair” (a function at which everybody dresses in white clothing) at the banquet hall located at 127 Barclay Drive, in the City of Toronto.
3 Mr. Fraser testified that he arrived at the hall and purchased some beer tickets. He then went to the bar and ordered two bottles of beer. With two beers in hand, he turned away from the bar and immediately encountered Mr. Blenman. Mr. Fraser testified that Mr. Blenman was immediately “in his face.” Mr. Fraser asked him to move out of the way. Mr. Fraser testified that, for no apparent reason, Mr. Blenman took one of the beer bottles from him and struck him on the side of his head on three occasions. Mr. Fraser testified that one of the beer bottles broke. However, in a statement to the police, he said he was not sure whether one of the bottles broke or not. Mr. Fraser immediately left the banquet hall, but then returned a short while later to get a friend. At that point, he realized that he was bleeding. Mr. Fraser went to the hospital, where he received 44 stitches. He also suffered a broken cheekbone, for which he underwent surgery.
4 Mr. Fraser could think of no reason why Mr. Blenman would hit him. During cross-examination, Mr. Fraser denied telling Mr. Blenman that he had a gun and that he was going to put him “in a pine box.” Mr. Fraser admitted to having had a “run-in” with Mr. Blenman a few years earlier when Mr. Fraser had attended a party at a barbershop where Mr. Blenman worked. Mr. Fraser said that Mr. Blenman mentioned something about robbing Mr. Fraser of a gold chain he was wearing at the time. Mr. Fraser testified that he took it as a joke. He denied the suggestion that he was asked to leave the party for misbehaving or being intoxicated. Mr. Fraser also testified that, on the night of the “All White Affair”, he had consumed only one drink.
5 Mr. Blenman provided quite a different account of the incident. He was 34-years old at the time. Mr. Blenman acknowledged meeting Mr. Fraser two years earlier at the Christmas party held at the barbershop. He testified that Mr. Fraser drank too much, became quite loud, and was asked to leave the party. Mr. Blenman said that was the last time that he saw Mr. Fraser prior to the “All White Affair.” He denied ever threatening to rob Mr. Fraser of a gold chain.
6 Mr. Blenman testified that he went to the “All White Affair” with Aubrey Van Rossum, a man who also knew Mr. Fraser. Mr. Blenman testified that Mr. Fraser came towards him and bumped his shoulder, causing Mr. Blenman’s drink to fall out of his hand. Mr. Blenman said that he did not immediately recognize the person who had bumped into him because that person was wearing a baseball cap. Mr. Fraser then said something like, “I have something for big guys like you” and that he was going to put Mr. Blenman in “a pine box.” Mr. Blenman took this to be a death threat.
7 Mr. Blenman spoke to Mr. Van Rossum, who then went over to speak to the person who had threatened Mr. Blenman. He came back and told Mr. Blenman that it was Devon Fraser. Shortly afterwards, Mr. Fraser approached Mr. Blenman. Mr. Blenman said Mr. Fraser had two beer bottles in his hands. He held the necks of the bottles with both hands and then lifted them, pointing his two forefingers, as if to make the shape of a gun. Again, he said he would put Mr. Blenman in a “pine box.” Mr. Blenman thought that Mr. Fraser was intoxicated. Mr. Blenman said he was scared and angry at what Mr. Fraser had done. He reacted by shoving the beer bottles and Mr. Fraser away with great force. In Mr. Blenman’s view, this is how Mr. Fraser sustained the injuries to his face. Mr. Blenman explained that he took the threat seriously because he thought Mr. Fraser was affiliated with a gang.
8 Mr. Van Rossum testified on behalf of the defence. He said that he was very fond of the complainant, Mr. Fraser, having known him since he was a child. He said he was “like a son to me.” Mr. Van Rossum also knew Mr. Fraser’s parents from Guyana.
9 Mr. Van Rossum basically confirmed Mr. Blenman’s account of what happened at the “All White Affair.” He drove the accused there, arriving about an hour before the incident. At one point during the evening, Mr. Blenman approached him and said “some guy is going to put me in a pine box.” Mr. Van Rossum investigated the matter and realized that it was Devon Fraser. Mr. Van Rossum spoke to Mr. Fraser. Mr. Van Rossum was under the impression that Mr. Fraser had been drinking. In his testimony, Mr. Fraser remembered seeing Mr. Van Rossum that night, but did not recall speaking to him. After speaking with Mr. Fraser, Mr. Van Rossum thought everything was fine or “cool.” Shortly afterwards, Mr. Van Rossum saw Mr. Fraser walk towards Mr. Blenman and make a “gun-pointing gesture.” It was at this point that Mr. Blenman “slammed” the beers away from his face, injuring Mr. Fraser.
POSITIONS OF THE PARTIES
10 For the Crown, Mr. Wright argues that the evidence provided by Mr. Fraser establishes Mr. Blenman’s guilt beyond a reasonable doubt. In terms of the conflict between the evidence given by Mr. Fraser and that given by Mr. Blenman and Mr. Van Rassum, Mr. Wright argues that, even if I reject the evidence of Mr. Fraser and accept the defence evidence, the offences are still made out because Mr. Blenman also described what amounted to an unjustified assault. In other words, the Crown submits that it is open to me to reject the evidence of the complainant, but still find the accused guilty beyond a reasonable doubt. The Crown also argues that the defence of self-defence has been rebutted beyond a reasonable doubt in the circumstances of this case.
11 On behalf of his client, Mr. Rusonik submits that the case has not been established beyond a reasonable doubt, due to frailties in the evidence of the complainant, combined with its variance from the evidence given by Mr. Blenman and Mr. Van Rossum. Moreover, Mr. Rusnonik relies on the defence of self-defence, both in terms of the immediate encounter Mr. Blenman had with the complainant, and in relation to the more ominous threat to cause Mr. Blenman death.
ANALYSIS
(a) Assessment of Credibility
12 As is clear from above, the evidence lead by the Crown and that lead by the defence are diametrically opposed as to how Mr. Fraser was injured at the All-White Affair. Beyond merely raising a reasonable doubt, I accept as true Mr. Blenman’s version of what occurred that evening at the “All White Affair.” I reach this conclusion for a number of reasons. First, there were a number of inconsistencies in Mr. Fraser’s evidence. For example, as noted above, Mr. Fraser initially told the police that he was not sure whether one of the bottles broke when Mr. Blenman hit him, whereas at trial he was confident that the bottle did break. There were other inconsistencies in his evidence.
13 More significantly, Mr. Fraser’s evidence does not stand up to close scrutiny, especially when considered in the light of the rest of the evidence. Mr. Fraser’s description of the event makes no sense. Essentially, Mr. Fraser described an unprovoked and unexplained attack, in a public place, by a person with whom he had a very fleeting connection, and had not seen for two years. Of course, unprovoked and unexplained attacks are an unfortunate reality in our society. Here, however, there is an alternative version that suggests that this was not one these unfortunate events.
14 The evidence of Mr. Blenman and Mr. Van Rossum provides a context for what occurred that night. Mr. Blenman’s account of the barbershop party incident suggests that Mr. Fraser may well have had a sense of grievance after being asked to leave the party by Mr. Blenman. Moreover, Mr. Blenman’s testimony that Mr. Fraser was again intoxicated at the “All White Affair” is also telling in evaluating Mr. Fraser’s account of events.
15 More profoundly, Mr. Blenman’s evidence was completely confirmed by Mr. Van Rossum. I found Mr. Van Rossum’s evidence very compelling. Mr. Van Rossum was not an independent witness in the classical sense. He knew both men very well. As such, he had some misgivings about testifying. It was my impression that he was much closer to Mr. Fraser and his family than he was to Mr. Blenman. Mr. Van Rossum obviously had great affection for Mr. Fraser. Nevertheless, he confirmed Mr. Blenman’s account of what occurred at the banquet hall that night, including the fact that Mr. Fraser had been drinking that evening and was quite intoxicated at the time. As Mr. Van Rossum said, Mr. Fraser was like a different person. Mr. Van Rossum was completely unshaken during cross-examination. I accept his evidence without reservation.
16 After considering all of the evidence, I reject the evidence given by Mr. Fraser. I am satisfied that the incident happened in the way that Mr. Blenman described it.
(b) Liability and the Theory of the Crown
17 It might be thought that my findings of credibility would be sufficient to dispose of this case. In the vast majority of cases, rejecting of the evidence of the complainant and accepting the evidence lead by the accused should produce reasonable doubt. However, Mr. Wright for the Crown urges me to find Mr. Blenman guilty based on his own evidence. He says that Mr. Blenman’s evidence provides a factual foundation for an assault, unjustified by self-defence. Mr. Wright submits that I may find Mr. Blenman guilty even if I completely reject the evidence of the complainant, as I have done in this case. There is support for the Crown’s position.
18 The Crown is not bound by a single or particular theory of its case: see Regina v. Groot (1998), 129 C.C.C. (3d) 293 (Ont. C.A.), affirmed (1999), 144 C.C.C. (3d) 287 (S.C.C.). The principle was explained most recently by the Court of Appeal for Ontario in Regina v. Ranger (2003), 178 C.C.C. (3d) 375 (Ont. C.A.), in which the trial judge left the jury with a theory of liability not advanced by counsel. Writing for the Court, Charron J.A. (as she then was) explained why the Crown is not wedded to a single theory of liability (pp. 419-420):
The underlying question that arises is whether the Crown is bound by the theory that it advances. To put the question another way, can an accused be convicted on a basis other than that advanced by the Crown? In this respect, it is important to note that there is a distinction between particulars given by the Crown under s. 587 of the Criminal Code and the Crown’s theory of the case. While the Crown is generally bound to prove formal particulars, it is not bound to prove the theory it advances in order to secure a conviction. A conviction is based, rather, on proof of the necessary elements of the offence. Hence this court, in Regina v. Groot (1998), 129 C.C.C. (3d) 293, affirmed (1999), 144 C.C.C. (3d) 287 (S.C.C.), rejected the general proposition that once the Crown presented a particular theory it would be unlikely prejudicial to the accused in any case to allow the trier of fact to convict on a different theory. The question turned, rather, on whether the accused, in the particular case under review, was able to present a full and fair defence. [emphasis added]
19 Ranger was recently applied in Regina v. Julson, [2006] B.C.J. No. 182 (C.A.), a case that is quite similar to the one before me. In Julson, the accused was charged with assault causing bodily harm. Crown witnesses described an attack started by the accused and his co-accused, stemming from a verbal altercation with the victim. The position of the accused was that the victim started the fight and that they responded in self-defence, hitting the victim many times. The Crown argued that, even on the accused’s own evidence, they were guilty of the offence charged because they had used excessive force. The accused were convicted. On appeal, it was argued that the Crown theory had improperly shifted after the accused had testified. The British Columbia Court of Appeal dismissed the appeal. After citing the passage from Ranger above, Justice Huddart said at para. 24: “When it is the defence case that gives rise to the alternative theory, it cannot be said the accused is not able to present a full and fair defence.”
20 At first blush, it might seem startling that an accused person could be convicted even though the evidence of the complainant is disbelieved. However, this proposition makes sense when it is recalled that, in determining whether the pre-conditions for liability have been established, the trier of fact must consider all of the evidence, including the evidence adduced on behalf of the defence. Thus, while it might appear unfair that an accused might himself provide the basis for liability, the unfairness is more apparent than real because it is the content of the evidence that is crucial, not its source. Therefore, it is open to me to convict Mr. Blenman on his own evidence if it establishes the offences with which he is charged. Mr. Blenman’s own evidence confirmed that he applied force to Mr. Fraser. Therefore, I must determine whether Mr. Blenman acted in self-defence.
(c) Self-Defence
21 Mr. Blenman’s claim of self-defence rests on two propositions. First, Mr. Rusonik submits that Mr. Blenman was entitled to react in the manner that he did as a legitimate response to Mr. Fraser’s threat to put Mr. Blenman in a “pine box.” As Mr. Rusonik submitted, Mr. Blenman was entitled to assert himself as a person to ward off any future attack. Second, Mr. Rusonik submits that Mr. Blenman was being assaulted by Mr. Fraser when Mr. Fraser’s his fingers were pointed in his face and he was being threatened and, as such, he was entitled to repel that force or threat of force with force.
22 I reject Mr. Rusonik’s first submission. It is doubtful whether the law justifies the type of pre-emptive strike against a future threat to kill as described in this case. Of course, a pre-emptive strike is sometimes justified in the name of self-defence: see Regina v. Lavallee (1990), 55 C.C.C. (3d) 97 (S.C.C.). This case is different. The application of force by Mr. Blenman was not realistically responsive to a threat to kill him at some future time. Gauged against the threatening words of future death alone, Mr. Blenman’s reaction is more realistically viewed as an angry retaliation to being threatened, rather than a legitimate claim to protect himself from future harm.
23 Mr. Blenman’s claim of self-defence is justified as an immediate response to Mr. Fraser’s actions in holding the beer bottles to Mr. Blenman’s face, accompanied by the “gun-pointing” gesture and the “pine-box” threat. Collectively, I find that these actions and words constituted an assault on Mr. Blenman, as defined by s. 265(1)(b) of the Criminal Code, which provides:
s. 265(1) A person commits an assault when …
(b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose.
As Professor Roach says in Criminal Law, 3rd ed. (Toronto: Irwin Law, 2004) at p. 301: “Thus, a person may be unlawfully assaulted, even though he or she has not yet been struck.” Mr. Fraser’s actions fall within this definition of an assault: see Regina v. MacKay (2005), 203 C.C.C. (3d) 289 (S.C.C.).
24 The question then becomes whether Mr. Blenman’s response falls within the ambit of s. 34 of the Criminal Code, which provides:
s. 34(1) Everyone who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than necessary to enable him to defence himself.
(2) Everyone who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if
(a)
he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purpose; and
(b)
he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm.
25 Section 34(2) is not applicable in the circumstances of this case. In order for that provision to be applicable, at the very least, an accused person must demonstrate that he/she reasonably feared death or grievous bodily harm: see Regina v. Pawliuk (2001), 151 C.C.C. (3d) 155 (B.C.C.A.). While Mr. Blenman was annoyed with the actions of Mr. Fraser that night, I am doubtful that he reasonably feared for his life.
26 I find that all of the pre-conditions for the application of s. 34(1) are present in this case. First, as discussed above, Mr. Blenman was being assaulted by Mr. Fraser at the time. Secondly, while Mr. Blenman ended up causing grievous bodily harm to Mr. Fraser, I am satisfied that he did not intend to do so – he merely did what he could to get Mr. Fraser “out of his face.” Section 34(1) is only rendered unavailable when the accused intends to cause death of grievous bodily harm: see Pawliuk, supra. Thirdly, I find further that Mr. Blenman did not provoke the assault on himself. Lastly, I find that he did not use more force than was necessary in the circumstances. In making this determination, it is important not to be distracted by the consequences of the accused’s actions. The focus must be on what the accused did in defending himself, not on the results of that action. While consequences often inform the issue of proportionality embedded in s. 34(1), they not determinative. As Wood J.A. held in Regina v. Kandola (1993), 80 C.C.C. (3d) 481 (B.C.C.A.) at p. 488: “It is important to note that it is the force itself, and not the consequence of the force used, which is justified if the limiting conditions of the statute are met.”1 It must also be borne in mind that an accused need not “weigh to a nicety … the exact measure of defensive action”: see Regina v. Baxter (1975), 27 C.C.C. (2d) 96 (Ont. C.A.), at p. 111 and Regina v. Hebert (1996), 107 C.C.C. (3d) 42 (S.C.C.), at p. 50.
27 In this case, Mr. Blenman performed an act that was directly responsive to the threat that he was facing. In hindsight, given that Mr. Fraser was holding beer bottles close to his own face, Mr. Blenman’s actions might be considered to be somewhat careless. However, this does not undermine his claim to self-defence, given that it was Mr. Fraser who chose to make his point by using the beer bottles in the manner that he did.
CONCLUSION
28 In all of the circumstances, I find that the Crown has failed to negative the defence of self-defence in s. 34(1) of the Criminal Code. It was for these reasons that I found Mr. Blenman not guilty on both counts.
G. TROTTER J.
* * * * *
Corrigendum
Released: March 26, 2007
The name Blenmam has been corrected to Blenman.