R. v. Matchett, 2010 ABQB 780

Court of Queen ’ s Bench of Alberta Citation: R. v. Matchett, 2010 ABQB 780 Date: 20101208 Docket: 090194531Q1 Registry: Calgary Between: Her Majesty The Queen Crown - and - Jackie Jarvis Matchett Accused _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice K.M. Eidsvik _______________________________________________________ Overview [ 1 ] Mr. Matchett is charged with committing an aggravated assault against his friend, Mr. Ian Pettigrew, as a result of an incident that occurred in the early morning hours of February 10, 2009 in Mr. Pettigrew’s apartment.

There were three persons present when the incident occurred, and three different versions of what happened. [ 2 ] Mr. Matchett admitted from the outset that he was involved in the incident in the City of Calgary on the date in question. In his testimony at trial he also admitted hitting Mr. Pettigrew. He said that he did so to defend himself and Mr. Pettigrew’s girlfriend, Caitlyn Lockwood, from assault.

[ 3 ] The Crown contends that the accused assaulted Mr. Pettigrew by pushing him into a window and subsequently punching him several times, causing serious facial injuries which required surgery and rehabilitation. The Crown takes the position that there is no air of reality to the self defence claims made by the accused but in the alternative, that even if some defensive action was required in these circumstances, that Mr.

Matchett used much more force than was necessary, and as a result, the Crown has proven beyond a reasonable doubt that this defence is not available, and the accused should be convicted of aggravated assault. [ 4 ] For the reasons set out below, I find that the self defence evidence before me passes the threshold of having an “air of reality” and that the Crown has not met the burden of proof beyond a reasonable doubt that the actions of the accused, Mr. Matchett. were not in self-defence of himself pursuant to section 34 (1) of the Criminal Code or of himself and the protection of Ms. Lockwood pursuant to

section 37. Nor do I find that Mr. Matchett used excessive force in these circumstances despite the bodily harm that unfortunately resulted to Mr. Pettigrew. Accordingly, I find Mr. Matchett not guilty of the charge of aggravated assault. The evidence [ 5 ] Since the evidence in this case was so contradictory I plan to summarise it initially and then deal with my findings separately under the individual elements that need to be proven or disproven in this case. Crown evidence Caitlyn Lockwood/Pettigrew [ 6 ] The main crown witness was Caitlyn Lockwood, now Pettigrew, since she is now married to Ian Pettigrew.

Her version of what happened is as follows. She testified that in February 2009 she had been working at a bar as a server for about one week. She had come in at 10 a.m. and was the only staff other than the manager and someone cooking in the back. Another staff not on duty was drinking at the bar. [ 7 ] At around 11:30 a.m. Mr. Matchett came in for lunch. He was a regular at the bar. His girlfriend joined him. He drank three beer with lunch and left. About an hour later he returned to the bar and started drinking rum and cokes.

He asked her for Ian Pettigrew’s telephone number and called him to come to the bar and join him. Mr. Pettigrew came to the bar one or two hours before the end of her shift (at 5 pm). They were drinking rum and cokes and some beer. After her shift clean up she joined them for one or two drinks before going home to her and Mr. Pettigrew’s apartment which was nearby. [ 8 ] While at home, Ms. Pettigrew testified that she changed and called her girlfriend Crystal Wheeler and asked her to join them. She then went back to the bar to join Mr Pettigrew and Mr. Matchett.

She felt that they had been there the whole time and that they had continued drinking while she was away. She thought that Mr. Matchett was more intoxicated that Mr. Pettigrew because of flushed cheeks and loud behaviour. [ 9 ] About an hour later she said that the three of them went back to the apartment to wait for Ms Wheeler to come. She finally arrived and Mr. Matchett paid for her cab. The four of them then returned to the bar, had a few more drinks but then Mr. Matchett bought a 26 once bottle of rye and they returned once again to their apartment. [ 10 ] The mood was initially good at the apartment.

She and Ms Wheeler had a whiskey and coke drink each and Mr. Matchett and Mr. Pettigrew were drinking directly from the bottle. An hour or so later Ms. Wheeler left. After Ms Wheeler left, although the mood was still good, Ms Pettigrew wanted Mr. Matchett to leave because she had to work in the morning. She didn’t think that either Mr. Matchett or Mr. Pettigrew were working at that time. [ 11 ] Mr. Matchett refused to leave because he needed his cell phone and he wanted to call his girlfriend. Ms. Pettigrew told Mr.

Pettigrew to get Mr. Matchett to leave. Mr. Pettigrew was intoxicated and she was getting frustrated and stern with him. She asked Mr. Pettigrew to come into their bedroom to talk about it. They did so and she and Mr. Pettigrew were standing in the bedroom - she was nearer the bed and he was nearer the bedroom door. [ 12 ] “Out of the blink of an eye” Mr. Matchett came around the corner, came into the room and jumped on Mr. Pettigrew, which caused him to fly into the bedroom window and hit his head and left shoulder in the window. This shattered two panes of glass and knocked Mr. Pettigrew out.

He landed on his back on their bed and Mr. Matchett got on top of him, straddled him, and started punching Mr. Pettigrew with closed fists using both hands. [ 13 ] Ms. Pettigrew was screaming and crying for Mr. Matchett to stop. She ran out of the bedroom, grabbed a phone, and called 911 while Mr. Matchett was still hitting Mr. Pettigrew on the bed. He stopped when she was on the phone. Mr. Pettigrew was still unconscious and was bleeding all over the bed and there was blood splattered all over the wall. His face was covered with blood. [ 14 ] The recording and transcript of the 911 call were entered.

Some parts of the transcript indicated that the words were indiscernible. The parties had various suggestions of what was being said , by whom and to who. Ms. Pettigrew was asked to explain some of what she had said. For instance: [ 15 ] - on p. 5 of the transcript Ms. Pettigrew was asked if the attacker was nearby (when Mr. Matchett was in the room) and she answered “no”. She said that she didn’t understand the question. [ 16 ] - on p. 8 and again on p. 14 she was asked by the 911 operator when this happened and she answered “Um, like, I don’t know.

Not very long ago.” And later, that she didn’t know when this happened. She said she was frantic and didn’t understand the questions. [ 17 ] - on p. 9 Mr. Pettigrew says quite clearly “I hate you with a passion”. She said that this was addressed to Mr Matchett. [ 18 ] - on p. 10 she says “I hear the ambulances. Jack please stay. Can you let them in ?” She said that she only asked him to stay because she knew that the police were coming. [ 19 ] After the incident Mr. Pettigrew was taken to the hospital. Ms. Pettigrew went the next morning and was there when he woke up.

She said that she didn’t discuss any details of the assault with him in the hospital or otherwise. She stated that he was in and out of consciousness and that he didn’t even know his own name initially. [ 20 ] Photographs were entered that she took of Mr. Pettigrew after he had surgery a week later. She described that Mr. Pettigrew was very injured - he couldn’t talk or walk because of balance issues, he was confused paranoid and scared. She stayed home and cared for him.

A few days after the assault she gave a statement to the police. [ 21 ] She didn’t take any pictures of the wall or mattress with the blood on them, or of the damaged window. They didn’t repair the window or throw out the mattress until they moved out of the apartment. [ 22 ] In cross examination Ms. Pettigrew denied that she and Mr. Pettigrew were having relationship problems in February 2009. She denied vehemently that she had told a fellow staff member at work that she had been in a fight and that Mr. Pettigrew had thrown her engagement ring out of the window.

She denied that she would have even spoken to him about any relationship problems. [ 23 ] She denied that she was “a little angry” when speaking with Mr. Pettigrew in the bedroom even though this is what she had said at the preliminary hearing. [ 24 ] When pressed on details of the assault she described, Ms. Pettigrew was not certain in the end if Mr. Matchett had used one or

two fists - although she had testified that this was so in direct and at the preliminary hearing. She didn’t know how many times Mr. Matchett hit Mr. Pettigrew although they were many. She couldn’t recall if Mr. Matchett was still punching Mr. Pettigrew when she was on the phone with 911 once she heard the CD and reviewed the call transcript, even though this is again what she had testified to in direct examination and at the preliminary hearing. [ 25 ] She denied that she had been arguing with Mr.

Pettigrew that evening and that the comments in the transcript saying “go to hell” and “he hates me”, and other such statements, were directed at her. She denied that she went out of the apartment with her friend once they returned the last time or that she went into the bathroom with her girlfriend. She vehemently denied that she asked Mr. Matchett to stay because she was worried about Mr. Pettigrew’s intoxicated condition and behaviour or that he was ever near the room with them before the assault started.

Finally, she denied telling one of the officers on scene that she was down in the apartment main lobby when the assault occurred and that she hadn’t seen anything - she felt that he must have misunderstood her. Dr. McKenzie’s testimony [ 26 ] Dr. McKenzie was qualified to give expert opinion evidence in plastic surgery and facial reconstruction. [ 27 ] He first met Mr. Pettigrew at the hospital on February 16, 2009 and assessed his injuries. He diagnosed a fractured nose, left cheekbone and upper jaw bone.

He felt that he required reconstructive surgery to repair the damage to his nose and cheekbone otherwise they would have healed abnormally. He performed the surgery and repaired the fractures by putting them back into place and holding them in position with two plates and screws. Mr. Pettigrew recovered without complications although he may need further surgery to remove one of the plates. [ 28 ] Mr. Pettigrew’s hospital records (entered for the truth of their contents) were reviewed by Dr. McKenzie. In emergency he noted that Mr.

Pettigrew could not remember the injury, he smelled of alcohol and was in a lot of pain. The ethanol test showed that he had 3 times the legal limit of blood in his system at 3:15 a.m. [ 29 ] He stated that in his opinion Mr. Pettigrew’s injuries were consistent with being caused by blunt force trauma. The blunt force could be one punch or many. When pushed by the Crown on this point, he stated that in his experience seeing many such trauma cases, he was aware of this type of damage being done with just one application of force, or one blow to the face.

He didn’t feel qualified to give an estimate of the force required to cause the injuries in question. [ 30 ] Dr. McKenzie opined that the injuries all came from the left side. The bruising under the right eye was likely caused by the broken nose - which was broken from the left side. He didn’t see any injuries consistent with glass and he did not note any mention of glass in his injuries in the records although it was conceivable that they could have been removed without a notation being made.

He also pointed out that the cuts on the lip and eyebrow could have been done by blunt force trauma. [ 31 ] The medical records are noteworthy for a few other matters - for instance there is no mention of any abrasions or pain of Mr. Pettigrew’s left shoulder, his Glasgow Coma Scale rating in emergency was 14 (he lost a point because of confusion), and the CT taken of Mr. Pettigrew’s head showed the facial fractures but no other changes, lesions or intracranial haemorrhage. Ian Pettigrew [ 32 ] Mr. Pettigrew is now 24 years old. He has worked in the construction industry for 8 years.

He had had a relationship with Ms. Lockwood for 6 months when this incident happened. They are now married. He stated that he didn’t remember the events of February 9/10 very well. He said all of his recollections are foggy. He doesn’t remember being hit, or hitting any window. He said that he was told by Ms. Pettigrew in the hospital that he was hit more than once and pushed into a window. [ 33 ] Mr. Pettigrew stated that he met Mr. Matchett while working in construction. They worked on the same project for a couple of months. He didn’t know him very well.

He believed that he had met him the day before at the bar and that they had exchanged numbers.

[ 34 ] He met up with Mr. Matchett the next day (Feb 9) at about 4 p.m. He was drinking beer and socialising - having a good time playing pool. He was there for a couple of hours before Ms. Pettigrew was off work. He recalled that she started drinking too after she was off . He believed that he and Mr. Matchett were drinking at about the same pace. He didn’t recall Ms. Pettigrew leaving for their apartment for a period of time. He recalled a friend of Ms. Pettigrew’s joining them at the bar (as opposed to their apartment). Eventually, at about 10 pm he thought, Mr.

Matchett bought a bottle of rye and the four of them went back to their apartment. [ 35 ] At the apartment they continued drinking and socialising, playing music. He admitted that it was possible that he had some shots of whiskey right out of the bottle. The others were drinking the whiskey with water he thought - but he wasn’t sure. He was feeling intoxicated - a 4-5 out of 10. He thought that Mr. Matchett was also feeling the effects but couldn’t say about the other two.

He said that he never got aggressive after drinking but was a happy drunk. [ 36 ] He recalled that the mood was friendly until Ms Wheeler left . At that point the mood changed. He was tired and wanted to call it a night. He said that what followed was hazy to him. He asked Mr. Matchett to leave but Mr. Matchett was looking for his cell phone - it was missing. He couldn’t remember if he saw this phone that night. Things were getting “heated” , Ms. Pettigrew wanted Mr. Matchett to go home and Mr. Matchett was aggravated because he couldn’t find his phone. The tension was building.

He became aggravated as well. [ 37 ] He recalled speaking with Ms. Pettigrew while she was standing in the bedroom. Mr. Matchett at this time was to his right in the hallway just outside the bedroom and he recalled talking with him too. He was standing between the two rooms. He recalled that the conversation was getting heated and he was going back and forth between Ms. Pettigrew and Mr. Matchett. He denied any physical contact with Ms. Pettigrew. The last bit that he recalled before waking up in the hospital the next day, was having his back to Mr. Matchett. [ 38 ] Mr.

Pettigrew described his injuries waking up in the hospital. Ms. Pettigrew was there when he woke up. He didn’t recall speaking with the police at the scene but recalled doing up a statement a few days later. [ 39 ] The 911 call was put to Mr. Pettigrew in cross-examination. He didn’t recognise his voice. He didn’t remember any of the conversation. He said that he wouldn’t have called Ms. Pettigrew a “causer” since he doesn’t use that term when he’s sober. He denied having any relationship problems with Ms. Pettigrew at the time. He described the heated conversation as elevated but not intense. He agreed that Ms.

Pettigrew could have said “get your ass to bed” to him for instance. [ 40 ] He felt that he and Mr. Matchett were about the same height but he was about 40 lbs lighter then than he is now - overall he felt he was somewhat smaller than Mr. Matchett. [ 41 ] He had no recollection of going over to Mr. Matchett’s that night although he admitted that he could have left the bar to smoke. He didn’t recall the girls going to the bathroom together that night but said that that was normal. He had no recall of banging on the bathroom door.

Constable Harper [ 42 ] Constable Harper was the most experienced Calgary police officer on scene. He arrived at 02:25 a.m. and was the first to enter the apartment with other officers, including his partner, Cst Browrigg, and Cst Morgan. [ 43 ] Cst Harper noted a man on the bed (Mr. Pettigrew), and a woman in the living room who was crying. He understood that there was another man in the living room as well. He noted that the left side of Mr. Pettigrew’s face was bruised and beaten - there was blood on his face but not anywhere else - including the walls.

He also noted that there was damage to the window - a jagged hole the size of a baseball (around 6 inches). [ 44 ] He spoke with Mr. Pettigrew and he said “ Jack beat me for no reason” but he couldn’t answer any more questions because he

lapsed in and out of consciousness. He accompanied Mr. Pettigrew to the hospital and left a statement form to fill out and his card. Constable Morgan [ 45 ] Cst Morgan arrived at 2:15 a.m. but waited for Cst Harper to go in. He noted the man on the bed and he grabbed the other man, who had been standing next to the bed, and took him out. He was emotional, uninjured and cooperative. He took him to the hallway and was going to arrest him because of the injuries to the victim and the reaction of the girlfriend. [ 46 ] He didn’t note any blood splatter or observe any in the room. He noted some blood on Mr.

Matchett’s dominant hand. [ 47 ] He noted that they were all intoxicated. With respect to Mr. Matchett he did not note any difficulty speaking, walking or flushed face and agreed that for the most part he was cooperative. [ 48 ] He took Mr. Matchett to his police car and after speaking with him he decided to drive him home and not take him to arrest processing. It was his view that further investigation had to be done first - he was unable to determine what had happened.

He noted: “because all parties are uncooperative unable to determine whether it was a consensual fight”. [ 49 ] Cst Morgan became the primary investigator for the case. He tried to track down Crystal Wheeler but was unsuccessful. Ms. Pettigrew had not had any contact with her since the incident. He attended on Mr and Ms. Pettigrew on February 15 to take their statements. He left them forms and told them to be as detailed as possible. EMS and Cst Reinson [ 50 ] The EMS paramedic, Naomi Morris (now Nania) arrived at 2:12 a.m. but didn’t go in until the officers were with her at 2:25 a.m.

Her patient was sitting on a chair, conscious and answering questions with trauma to his face and bleeding on his nose. She noted in the EMS report: “pt punched in his face by a fist. no other trauma noted. Injuries noted to the nose, right eye and mouth.” She agreed that she could have meant left eye (her right) with respect to the eye. She noted an estimate of Mr. Pettigrew’s weight to be 155 lbs. [ 51 ] Cst Reinson arrived on the scene at 2:20 a.m. - he was working alone that night. He recalled greeting Ms Pettigrew in the hallway. He tried to take a statement from her but only got one line that wasn’t useful.

He noted a male in the bed in the bedroom and that the window was broken. The 911 call [ 52 ] Although I have, and will again, reference the various witnesses’ views on the recording of this call, I will deal with it as a separate heading because of its importance in this case. The call is about 9 minutes long in total and is hard to understand in parts. The transcript is fairly accurate in my view although there are a few obvious mistakes and some areas where parts have been missed. The audio version was entered as the authoritative piece of evidence and the transcript as an aid. [ 53 ] The call starts with Ms.

Pettigrew saying “Hi, uhm, my boyfriend is bleeding so bad that he is not answering me....and I’m talking to him, and he has - - ”... [ 54 ] A few questions later Ms. Pettigrew answers the following to a question about the apartment number : “ - my friend’s here. We can bring him downstairs.”

[ 55 ] When asked exactly what happened Ms. Pettigrew responded: “uhm - - (crying) uhm, well, some guy hit him and he’s fuckin’ - he hit him a lot of times and he’s not breathing.” [ 56 ] Mr. Matchett is heard to say “fuck” when he hears Ms. Pettigrew say he’s not breathing. [ 57 ] Ms. Pettigrew answers the attacker is not still nearby when the operator asks her. [ 58 ] Shortly after this, the operator asks how many people are in the house and Ms. Pettigrew answers “just me and him and his friend”. The operator asks for the friend to leave and Ms. Pettigrew calmly asks him to do so.

She said “Jack leave the room . I have to talk. I’m on the phone with the ambulance.” [ 59 ] A little later the operator asks when this happened. Ms. Pettigrew answers, “Uhm like I don’t know. Not very long ago.” Later she is asked again if she knows when exactly this happened but she answered “no”. [ 60 ] On a couple of instances the operator asks Ms. Pettigrew to get right by Mr. Pettigrew, kneel next to him , and later turn her ear to his mouth to check his breathing. Just after looking in Mr. Pettigrew’s mouth, Mr. Pettigrew says “I hate you with a passion”. Mr.

Matchett is also heard faintly in the background. [ 61 ] Shortly after, Ms. Pettigrew says: “I hear the ambulances.” And she says to Mr. Matchett in a very nice controlled voice “Jack, please stay. Can you let them in ?” Mr. Matchett answers “yup” to this. [ 62 ] Ms. Pettigrew then states to Mr. Pettigrew “Ian, baby, please. Baby, I love. (Crying) I love you.” To which Mr. Pettigrew answers, in my view of listening to the recording, “I never want to see you again”. Thereafter Ms.

Pettigrew starts crying hysterically and is not responsive to the operator for quite a bit until the operator says “What’s going on now?” Ms. Pettigrew answers “I’m scared”. The operator asks “What is he saying to you ?” There is then a series of questions and answers then that I interpret to be: - Ms. Pettigrew: “It was that he says that he hates me”. - The operator asks why and Ms. Pettigrew says “I don’t know”. - To which Mr. Pettigrew (not “Jack” as the transcript suggests ) says “Is she caught yet ?...Causer ! Go to hell”. - Ms. Pettigrew says “And now he’s screaming”. - The operator then asks if Ms.

Pettigrew is safe to be in there and Ms. Pettigrew answers “yes. I’m safe.” [ 63 ] Shortly thereafter Ms. Pettigrew states that Mr. Pettigrew is not doing anything anymore and she says “don’t leave me” and asks him to look at her several times. Near the end of the call Mr. Pettigrew repeats “I hate you” and Ms. Pettigrew confirms that it is Mr. Pettigrew talking. The call ends when the police are about to be transferred to the line - but when Ms. Pettigrew’s line goes dead they presume it’s because the police had already been there for 2 minutes. Defence evidence

Cst Browigg . [ 64 ] Cst Browigg arrived with his partner Cst Harper. He went up to the apartment but didn’t go in. He encountered Ms. Pettigrew in the hall. She was crying and very emotional. He asked what had happened and she said that she hadn’t seen anything because she was down in the lobby and they were fighting when she came back to the unit. He recalled seeing the broken window when he looked in but couldn’t recall the size of the break. He went to the hospital with Cst Harper and tried getting a statement from Mr. Pettigrew but he was too intoxicated and injured. Artan Hasanaj [ 65 ] Mr.

Hasanaj was the supervisor and bar tender of the bar in question. On February 9, 2009 he was at the bar at 9:30 a.m. as usual to open it up. Ms. Pettigrew showed up late for work - 7 to 15 minutes late - and when he asked her why she responded that she had “family problems” and walked away. A half an hour later she wasn’t doing what she needed to and he went and asked her if she was OK. She said that her fiancé had thrown her ring off of the balcony and she started crying. He felt sorry for her. She said she’d be OK in a short time. [ 66 ] Ms. Pettigrew had worked there for about 2 weeks - not long.

She often came to work complaining and angry because she had had arguments with her boyfriend. [ 67 ] He recalled Mr. Matchett coming in for lunch. Ms. Pettigrew walked away and ignored him when he initially said good morning - he told Mr. Matchett that she was having problems with her boyfriend. Mr. Matchett was a regular for about a year - he came in 2 to 3 times a week. He was not a heavy drinker - he usually drank Coors Lights. [ 68 ] He recalled Mr. Pettigrew coming to the bar later and Mr. Matchett and Mr. Pettigrew playing pool and having a good time.

He finished work around 3 pm and had a drink before he went out to do some errands. He came back later in the evening and noted all the regulars there. He recalled Mr. Matchett buying the bottle of rye and four of them leaving together. The mood was happy. He noted that Ms. Pettigrew was quite intoxicated - he had never seen her intoxicated before - she was screaming, laughing and dancing around having a good time. [ 69 ] He didn’t see any of them again after that night - he tried to call Ms. Pettigrew but got no return call. The accused, Jackie Matchett [ 70 ] Mr. Matchett is a 28 year old, originally from St.

John, New Brunswick. He moved to Calgary 2 ½ years ago. He is a journeyman concrete finisher. [ 71 ] On February 9, 2009 Mr. Matchett’s work was cancelled for the day because it was 27 below zero. His girlfriend had recently arrived from New Brunswick and she was feeling tired and jet-lagged. He decided to go to the bar to get some lunch around 11:30 a.m. His girlfriend stayed home. [ 72 ] He noticed that Ms. Pettigrew was working and he asked her where Mr. Pettigrew was. He had seen him the day before and exchanged telephone numbers.

She told him that he had thrown her engagement ring out and that he was leaving her. He spoke with Artan as well, had 2 or 3 beers and left. [ 73 ] Mr. Matchett came back to the bar a couple of hours later after having done some errands. He asked Ms. Pettigrew if it was OK if he called Mr. Pettigrew and she said that it would be OK. He had his girlfriend’s cell with him that day - he didn’t own a cell phone. Unfortunately it was dead. He made the call somehow and left a message for Mr. Pettigrew. Mr. Pettigrew called back a bit later and he agreed to come down to the bar to play pool. Mr.

Matchett offered to lend him some money. Mr. Pettigrew arrived a bit later and they played pool and waited for Ms. Pettigrew to be finished work.

[ 74 ] After Ms. Pettigrew got off of work she sat down and had a drink. She left to go and change. He and Mr. Pettigrew also went back to his apartment briefly to change and return his girlfriend’s cell phone - they got back before Ms. Pettigrew got back. She said that a friend was going to join them and they waited until she arrived, by cab, at around 8:30 - 9 pm. He denied that he paid for her cab or that the friend arrived at the apartment.

They all had a couple of drinks together before they went back to the apartment with the bottle of rye he bought. [ 75 ] At the apartment they poured drinks from the rye bottle and mixed them with water. Shortly after, Ms. Pettigrew’s friend and Ms. Pettigrew went downstairs. They were gone for 15 - 20 minutes and Mr. Pettigrew started to get worried so they went down to check it out. Once there they noticed that Ms. Pettigrew and her friend leaning into a car window speaking with someone and then come back into the lobby. Mr. Pettigrew asked who that was and Ms. Pettigrew said not to worry about it.

They all went back up to the apartment and were sitting around the kitchen table again when Ms. Pettigrew and her friend went into the bathroom together. Mr. Pettigrew went over to the bathroom and was pounding on the door until they came out. Her friend went to the couch and turned on the TV and Ms. Pettigrew went to the bedroom - followed by Mr. Pettigrew. He could hear them arguing about who was in the car and what Ms. Pettigrew was up to. [ 76 ] He and Ms Wheeler looked at each other as they were listening to the argument going on for longer than half an hour. Ms Wheeler then got up and left.

He was uncomfortable but waited for a bit hoping that things would calm down and they could go back to having a good time. Mr and Ms. Pettigrew came back into the living room still arguing. Mr. Pettigrew started acting out - gulping from the bottle, pulling at his hair, and arguing with Ms. Pettigrew. Ms. Pettigrew told Mr. Pettigrew that he was acting crazy. [ 77 ] Mr. Matchett said that he wanted to go - he had had enough - but Ms. Pettigrew asked him to stay because she was getting scared. So he stayed because he knew that they had been having problems, Mr.

Pettigrew was acting weird and had been drinking, and he was worried about Ms. Pettigrew. This made Mr. Pettigrew very mad - “he lost it”. Ms. Pettigrew went back into the bedroom and Mr. Pettigrew followed her and continued arguing - the argument was escalating. He heard the argument escalate, profane language being used and then he heard Ms. Pettigrew say: “Ian stop !!!”. [ 78 ] Mr. Matchett felt things were now out of control and he felt something needed to be done so he went towards the bedroom and saw Mr. Pettigrew standing there holding Ms. Pettigrew by both arms stretched out.

He understood that she was in danger so he came into the bedroom when Mr. Pettigrew turned around, let go of Ms. Pettigrew and started towards him. He was then worried for his own safety and he struck Mr. Pettigrew once in the face with his right fist to stop him. [ 79 ] Mr. Pettigrew bent over grabbing his face and then started approaching him again. Mr. Matchett backed up with his hands up saying that he didn’t want to fight and yelling at them both to calm down. He got them to calm down a bit and Mr. Pettigrew was sitting on the bed when Ms. Pettigrew phoned 911.

He felt horrible about what had happened and felt he should stay with them to help. [ 80 ] While Ms. Pettigrew was on the phone she asked him to go down and let them in. So he went down and propped open the lobby door and then came back up quickly and waited. He spoke with the police when they arrived and tried to comply with what they were asking him. He was taken to the police car, answered some questions and then was driven home. [ 81 ] He denied pushing Mr. Pettigrew into the window, straddling over him, or punching him more than once. [ 82 ] On cross examination Mr.

Matchett admitted that he had had about 10 to 12 drinks over the day and was feeling the effects of the alcohol. He has a criminal record involving an obstruction charge with an officer and a breach of condition while on bail for this offence. [ 83 ] When he punched Mr. Pettigrew he used as much force as he felt was necessary - he was not a boxer and had no training. He felt that he had a split second to make the decision to punch Mr. Pettigrew when he turned at him. He denied being angry that night because he couldn’t find his cell phone - he didn’t even own one and he denied being an angry drunk.

He was 6 feet tall and 175-180 lbs at the time, and now.

[ 84 ] Mr. Matchett was cross examined with the 911 call. He felt that Ms. Pettigrew was upset about the situation, not with him, afterwards when she was on the phone with 911. He could hear himself crying in the background - he was very upset. He knew the police were coming but didn’t leave. He didn’t recognise much of his voice . He felt that the comments “I hate you with a passion” etc were directed to Ms. Pettigrew not him. He felt that the call was made about 10 minutes after he punched him - once they had got Mr.

Pettigrew calmed down and on the bed. [ 85 ] Keeping in mind that my function is not to resolve the broad factual question of what happened but a more limited one of deciding whether the essential elements of the charge of aggravated assault have been proven beyond a reasonable doubt in this case, including whether the defences have an air of reality and if so have been negatived by the Crown beyond a reasonable doubt (to paraphrase Mr Justice Cromwell at para 41 of the R. v.

Mah case, 2002 NSCA 99 ), I will do the analysis of the facts and my findings under each of the essential elements that need to be discussed. Law and Analysis Aggravated assault [ 86 ] The Crown must prove two essential elements beyond a reasonable doubt in order to have Mr. Matchett found guilty of aggravated assault in this case (setting aside the defences for the moment): 1. That Mr. Matchett intentionally applied force to Mr. Pettigrew; and 2. That the force Mr. Matchett applied wounded (maimed, disfigured or endangered the life of) Mr.

Pettigrew. . [ 87 ] Although it was not conceded by defence, it was not argued that these elements were not met. Indeed the evidence was clear that Mr. Matchett intended to apply force to Mr. Pettigrew by punching him and that Mr. Pettigrew suffered serious injuries as a result, as described by Dr. McKenzie. Accordingly I find that these elements have been met and I must now deal with the defences claimed by Mr. Matchett. Self-Defence [ 88 ] The defence relied on sections 34 (1), 37 and 27 to argue that Mr. Matchett should be acquitted because he acted in self- defence.

The Crown argued that there is no air of reality to these defences on the evidence before the court. The Defence argued that there was evidence upon which a properly instructed jury, acting reasonably, could acquit if it believed the evidence to be true and that therefore the burden of proof continues to lie with the Crown to prove beyond a reasonable doubt that Mr. Matchett did not act in self- defence in this case. Air of Reality [ 89 ] The tests to be used to determine if there is an air of reality to the defence in question have been eloquently set out in the R v Kong

(2005) A.B.C.A. No. 255; rev (2006) 2006 SCC 40 (CanLII) , S.C.J. no. 40 case at paras 174 and 175 , the R v Cinous [2002] S.C.C. No. 28 case and R v Cote 2008 MBCA 70 (CanLII) , [2008] M.J. No. 222 case at para 17 . I do not plan to repeat them here. I will apply the air of reality test to each of the elements of the s. 34(1) and s. 37 defences. I will deal with

section 27 later in these reasons. [ 90 ] Section 34 (1) has four elements necessary for self-defence: 1. An unlawful assault 2. The assault was not provoked 3. Lack of intent to kill or cause grievous bodily harm, and 4. The force used is no more than necessary for self-defence. ( R.v Kong at para 178 )

[ 91 ]

Section 37 has the similar element to 34(1) in that no more force than is necessary is required to be found, and it has an extra element that the force may be used to defend any one “under his protection” from assault in addition to defending himself. Unlawful assault [ 92 ] The question here is whether there is evidence which could support a finding that Mr. Matchett believed, upon reasonable grounds, that he was being, or was about to be unlawfully assaulted by Mr. Pettigrew. ( Kong at para 186 ). There is a subjective and objective component to this question - whether Mr.

Matchett perceived an assault, and if such perception was reasonable in the circumstances. [ 93 ] In my view, on the whole of the evidence, if Mr. Matchett is believed that he felt threatened by Mr. Pettigrew as Mr. Pettigrew turned towards him as he entered the bedroom while Mr and Ms. Pettigrew were in the middle of an escalating argument, this element could be met in these circumstances.

Further, it could be found to be a reasonable perception in the circumstances considering the evidence, if believed, that: - the Pettigrews had had a previous argument earlier in the day according to the independent evidence of Mr Hasanaj, - Mr. Matchett said he had become aware of this earlier in the day, - Mr. Pettigrew was seriously impaired according to the medical evidence at this time, - Mr. Pettigrew’s behaviour had been escalating over the evening, - he was upset with Ms. Pettigrew for leaving the apartment and speaking with some one in a car, and - the evidence of the 911 tape which arguable displays Mr.

Pettigrew as aggressive towards Ms. Pettigrew as he tells her to go to hell etc. [ 94 ] Accordingly, when, according to Mr. Matchett, Mr. Pettigrew turned towards him in my view a jury could find that this element has been met. Provocation [ 95 ] There is no evidence that Mr. Matchett provoked Mr. Pettigrew, and neither argued that this was the case, accordingly this element is satisfied. Lack of intent to kill or cause grievous bodily harm [ 96 ] Based on Mr. Matchett’s evidence, that he threw one punch to diffuse the situation basically, a jury could find, if he is believed, that Mr.

Matchett did not intend to cause grievous bodily harm to Mr. Pettigrew, let alone kill him, and accordingly this element is met. Proportionate force [ 97 ] The question here is whether there is evidence, if believed, that the force that Mr. Matchett used was no more than he reasonably believed was necessary to defend himself in these circumstances. It can even be a mistaken belief, as long as it was a reasonable mistake. There is a subjective and objective component to the test.

The cases warn about relying too heavily on the consequences of the force, as opposed to a review of the need at the moment for defensive action. [ 98 ] Here the Crown argued that there was no air of reality to this element since in the circumstances, even if Mr. Matchett is believed, he could have retreated from the bedroom to avoid Mr. Pettigrew. However, the law provided by counsel, including the recent

Justice R.A.Saull paper on self-defence (“Self-Defence”, national Criminal Law Program: St John’s, Newfoundland, July 2010 at p. 7) and the analysis in the Kong case (at para 210 ) suggest that there is no automatic rule that if the accused could have retreated as an option, his defence is not available. [ 99 ] In my view, it could be open to a jury to acquit if it believed Mr. Matchett that he threw only one punch. There are cases that go both ways in those circumstances and it would be for a jury to weigh if it was reasonable here.

Accordingly, there is an air of reality in my view to this element of the defence on the evidence. Person under protection [ 100 ] A person under protection can include friends or strangers who cry for help (Saul p. 16). Accordingly it would be open for a jury to find that Mr. Matchett’s evidence that Ms. Pettigrew requested him to stay and later yelled “Ian stop”, if believed, is a foundation for finding that Ms. Pettigrew was a person under Mr. Matchett’s protection when he hit Mr.

Pettigrew. [ 101 ] In sum, in my view, all of the elements of sections 34 (1) and 37 have an air of reality since there is an evidentiary record upon which a properly instructed jury acting reasonably could acquit Mr. Matchett on the basis of self-defence if it accepted the evidence as true. Accordingly, the burden of proof continues to remain with the Crown to prove that Mr. Matchett was not acting in self-defence in these circumstances. Section 34 (1) [ 102 ] As I reviewed already, there are four elements of this self defence section.

The Crown needs only negative beyond a reasonable doubt but one of these elements. The Crown’s position is that she has proven beyond a reasonable doubt that three of the four elements are negatived in this case. She has asked that the Court find Mr. Matchett’s evidence as improbable and not to be believed, using the WD analysis, and by finding that the Crown has proven its case by way of the key evidence of Ms and Mr.

Pettigrew and other corroborating evidence which I should accept. [ 103 ] The defence agrees that the analysis of the various elements of the defences depends on the credibility analysis to a certain extent of the main witnesses and pointed out that this analysis should be done using the WD methodology starting with Mr. Matchett’s credibility first. He argued that Mr.

Matchett’s evidence was believable and that therefore he should be acquitted, but even if it was not, that it raises a reasonable doubt about the self-defence that was required here and he should therefore be acquitted, and that even if I do not believe Mr.

Matchett, the Crown’s evidence is not enough to convict, since their version of affairs cannot be said to have negatived the defence of self defence beyond a reasonable doubt. [ 104 ] I agree that a great deal of the analysis of the applicability of the various elements of the sec 34(1) and 37 defences in this case turn in part on the credibility of the main witnesses and that such analysis should begin by reviewing the credibility of the accused first using the W.D. tests R. v. W. (D.) 1991 CanLII 93 (SCC) , [1991] S.C. J. No. 26 . I shall do so element by element.

Unlawful assault [ 105 ] The question of this first element of sec 34 (1), that there was an unlawful assault here on the facts, is whether Mr. Matchett perceived that he was about to be assaulted by Mr. Pettigrew when Mr. Matchett hit Mr. Pettigrew, and if such perception was reasonable in the circumstances. The background evidence about why Mr. Matchett may have perceived that he was about to be assaulted can be categorised into four categories: 1. The Pettigrew/Lockwood relationship 2. The activity at the apartment 3. The reason for the tension/arguments

4. The contact between Mr. Matchett and Mr. Pettigrew [ 106 ] Before I go to these categories, I should say that in general, Mr. Matchett gave his evidence in a very forthright and non defensive manner. He had a fairly good detailed recall of the events in question considering the lapse of time and the fact that he had admittedly been drinking that night.

I felt that he held up well after a fairly gruelling cross examination and was not really shaken except on some fairly minor points dealing with lengths of time and the time of day which varied somewhat, but not seriously. [ 107 ] With respect to the Pettigrew/Lockwood relationship generally, Mr. Matchett didn't know the Pettigrews very well. He stated that he gleaned that they were having relationship problems directly from Ms. Pettigrew herself over lunch and in the brief but informative information that he got in general conversation with Mr. Hasanaj.

He was forthright in saying however that the Pettigrews appeared to be getting along well together however until events started to unfold at the apartment later that night. [ 108 ] This view was corroborated by an independent third party , Mr. Hasanaj. His evidence on this issue was very compelling. He gave his evidence in a very matter of fact way and he withstood able cross examination. His view of what happened when Ms. Pettigrew came into work was not embellished. He did not try to suggest that he had become the confidante of Ms.

Pettigrew but rather, recalled her being late and distressed over her fiancé throwing her engagement ring away and having general, but not serious, issues with her fiancé before that day. He also freely acknowledged that it appeared that later in the afternoon things appeared good between the Ps. [ 109 ] With respect to the activity at the apartment, Mr. Matchett had a good recollection of what happened and was not shaken on cross examination about his story that Ms. Pettigrew and her friend went downstairs at one point which led to the start of arguments between she and Mr. Pettigrew. Interestingly, Ms.

Pettigrew indicated to one of the investigating officers, Cst Browigg, that she indeed had been downstairs in the lobby that evening (although at a different time...) - although she denied saying this at trial. Mr. Pettigrew also corroborated part of what Mr. Matchett called weird behaviour in his admissions that he was taking shots from the whiskey bottle Mr. Matchett had purchased. [ 110 ] Mr. Matchett stated that the tension escalated after the visit downstairs which escalated because of the inebriated condition of both of the Pettigrews, but especially of Mr.

Pettigrew (which is corroborated by the medical evidence), and caused Ms Wheeler to leave and Ms. Pettigrew to ask Mr. Matchett to stay because she was scared. The Crown says that this story is improbable and that Mr. Matchett would not sit around for as long as he said he did allowing an argument to escalate. I disagree. I do not think it is improbable that Mr. Matchett would stay if he was asked to, considering he felt that Mr. Pettigrew was inebriated and acting weird. [ 111 ] With respect to the initiation of the contact between Mr. Matchett and Mr. Pettigrew, Mr. Matchett’s version of hearing Ms.

Pettigrew call out “Ian stop” which got Mr. Matchett to go to the bedroom to see what was happening is believable in my view. Thereafter, after seeing Mr. Pettigrew with his arms on Ms. Pettigrew but then turn towards Mr. Matchett, in my view it was reasonable for Mr. Matchett at that point to be concerned for his safety and perceive that he may be assaulted. Although Mr. Matchett is a slightly larger man than Mr. Pettigrew, they were about the same size, same age and both in the construction industry, so potentially strong. Mr.

Pettigrew, especially as inebriated as he was, could reasonably have been perceived as a threat. [ 112 ] In my view, Mr. Matchett’s testimony on this point is corroborated both by the angry and belligerent talk of Mr. Pettigrew on the 911 tape, but also by Mr. Pettigrew himself who recalled looking back and forth between Ms. Pettigrew and Mr. Matchett before having no further memory. [ 113 ] The Crown argued that Mr.

Matchett should be disbelieved because of his evidence is not probable, he was inconsistent in his testimony, the corroborative evidence of Mr Hasanaj is not reliable and because it is contradicted by the evidence of Mr and Ms. Pettigrew, whose testimony should be taken into account in assessing Mr. Matchett’s story. I have dealt with some of these concerns above and will now turn to the evidence of Mr and Ms. Pettigrew. with respect to this element of section 34 (1). [ 114 ] Firstly, on an overall basis, I found Ms. Pettigrew’s evidence to be very defensive and somewhat argumentative.

She was caught more than once in exaggerations and contradictions in her testimony. When encountered with a problem she would lapse into “I don’t recall” type of answers. In my view, the serious results of the injuries that Mr. Pettigrew suffered from has clouded her recall and it is not reliable.

[ 115 ] Turning now to the categories of evidence, with respect to her relationship with Mr. Pettigrew she stated that she was engaged to Mr. Pettigrew and all was well in their relationship. She categorically denied that she had been arguing with him the day in question or before. She also denied outright that she would share any issues she might of had with her co-worker Mr. Hasanaj. Considering the comments that Mr. Pettigrew was making to Ms. Pettigrew later that night, as captured on the 911 call, I find it hard to believe that the Pettigrews had the perfect relationship she suggested at that time.

Mr Hasanaj’s evidence is contradictory to Ms Pettigrew’s and I found him to be believable on this point. [ 116 ] Mr. Pettigrew denied having relationship problems and could not remember throwing the engagement ring away. He thought it was absurd that he would suggest that he would move out or leave Ms. Pettigrew since he was paying the bills. Mr. Pettigrew also acknowledged however that all his recollections are foggy of this time and that for weeks after his memory was not the same. In my view, Mr. Pettigrew was trying to be truthful and did have the occasional break through of what happened that night.

He was trying to be straightforward and was not prone to exaggeration. However, overall I believe that he has reconstructed some of the situation and rationalised what was happening instead of having a true recall of everything he said he did. Indeed he candidly admitted that he was told about what happened, which would be natural of course. Accordingly, it would be dangerous in my view to rely on much of his evidence. [ 117 ] With respect to the tension in the apartment that night, Ms. Pettigrew denied any problems until Mr. Matchett was asked to leave and then suggested that the tension arose because Mr.

Matchett couldn’t find his cell phone and he wouldn’t leave until he found it. This story was contradicted by Mr. Matchett who stated that not only did he not own a phone, the phone he was borrowing from his girlfriend had been returned earlier that night because the battery was dead. In any event, it seemed like an odd reason to have the tension build and escalate as was suggested by all parties. [ 118 ] Ms. Pettigrew indicated that she never asked Mr. Matchett for help, that although she agreed that there were heated discussions, she was not angry, that Mr.

Pettigrew never held her by the arms or turned towards Mr. Matchett., and that Mr. Matchett came out of nowhere and attacked Mr. Pettigrew. I do not accept that Mr. Matchett attacked Mr. Pettigrew because he couldn’t find his cell phone. It makes no sense to me that he would leave the living room and enter the bedroom to suddenly commence hitting Mr.

Pettigrew for this reason. [ 119 ] As Justice Wittmann, as he then was, said in R v Kong at para 186 : “The existence of an actual assault is not a prerequisite for self-defence; it is enough that the accused reasonably believed in the circumstances that he was being, or was about to be, unlawfully assaulted: Cinous at para 107;McConnell at paras. 50-51, and 74. Thus, an accused does not have to wait until he is actually attacked.” As I believe Mr. Matchett’s evidence on this point, that he reasonably perceived that Mr.

Pettigrew was about to assault him, and that this perception was reasonable in these circumstances, this element is satisfied. Even if I did not believe Mr. Matchett, I would have a reasonable doubt that the Crown has not negatived beyond a reasonable doubt that there was a reasonably perceived unlawful assault before Mr. Matchett hit Mr. Pettigrew. Provocation [ 120 ] As this was not argued, or suggested that provocation was involved in this situation, it is clear that the Crown has not negatived this element beyond a reasonable doubt.

Lack of intent to kill or cause grievous bodily harm [ 121 ] The third element of s 34 (1) is whether on the evidence Mr. Matchett intended to cause death or grievous bodily harm when he hit Mr. Pettigrew. If he did, then this defence is not available to him. There is a crucial distinction between intention and consequences, as pointed out in several cases R v Kong , R v Kondola (1993) 1993 CanLII 774 (BC CA) , 27 B.C.A.C. 226 and R v W.W.R. (1998) 115 B.C.A.C. 311 ) - the consequences of the accused’s actions are not determinative of his intentions. So here, the consequences of Mr.

Matchett’s actions are clear in that Mr. Pettigrew suffered from grievous bodily harm - the question is whether Mr. Matchett intended those consequences when he hit Mr. Pettigrew. [ 122 ] As discussed above, Mr. Matchett testified that he only hit Mr. Pettigrew once in the face which caused Mr. Pettigrew to double over, stand up and come at him again but that at this point Mr. Matchett and Ms. Pettigrew were able to calm him down and get

him to sit on the bed. His evidence was that he was trying to stop Mr. Pettigrew, not grievously injure him. Again on this point I found Mr. Matchett to give his evidence in a straightforward way and was not shaken on cross. I found his evidence to be believable. [ 123 ] Mr. Matchett’s version of the contact is corroborated in part, or consistent with, with the evidence of Dr McKenzie who opined that the injury Mr. Pettigrew received could have been caused by one blow or many.

He indicated that in his practice as one of the leading reconstructive surgeons in Calgary he had seen similar damage in others by just one blow. Of course he couldn’t rule out that it had been caused by many blows either. The medical evidence was that the injuries were all on one side of Mr. Pettigrew’s face, so if there were more than one blow it would have had to come from the same side. [ 124 ] Again Mr. Matchett’s evidence on this point was contradicted by Ms. Pettigrew’s evidence which was that Mr. Matchett attacked Mr.

Pettigrew by firstly throwing him into their bedroom window, thereby knocking him out, and then straddling Mr. Pettigrew and hitting him repeatedly with both fists until she was on the phone with the police which is when he stopped. If that were the case, then it would be more obvious that Mr. Matchett intended grievous bodily harm. [ 125 ] Ms. Pettigrew’s version of what happened did not however stand up well to cross examination. For instance, she had difficulty describing how Mr. Matchett pushed Mr. Pettigrew into the window - whether he “flew” or how he made it across the room.

She admitted in the end that she didn’t recall. [ 126 ] She also had trouble with consistency in how Mr. Matchett was punching Mr. Pettigrew on the bed. At first she said it was with both hands at the preliminary hearing and in direct examination but then finally “couldn’t recall” in cross. As noted, the medical evidence on this point was that the blow or blows came from the left side only - making punching with both hands highly unlikely. Further, both Cst Morgan and Mr. Matchett testified that Mr. Matchett had some blood on only his right, or dominant hand. There is no other evidence beyond Ms.

Pettigrew’s shaky recall that the left hand was used. [ 127 ] Ms. Pettigrew also relayed at the preliminary and on direct that the punching on the bed didn’t stop until the 911 call was in progress. When pressed on cross she couldn’t recall. The recording of the call itself starts with Ms. Pettigrew complaining that Mr. Pettigrew is bleeding badly and that she is talking to him - that would be difficult if he was in the process of being punched. [ 128 ] Ms. Pettigrew recounted that there was blood all over the wall and yet none of the officers who attended noted any blood there.

If it was there, it wasn’t to the extent suggested by Ms. Pettigrew. [ 129 ] Ms. Pettigrew suggested that Mr. Pettigrew was knocked out hitting the window with his left shoulder and head. Yet there was no indication again in any medical records or otherwise that Mr. Pettigrew suffered any pain or bruising in his left shoulder. Further there was no indication of a bump or bruise to the back of Mr. Pettigrew head. Indeed the CT scan of his head was normal other than the facial fractures. Finally, there were no shards of glass noted on Mr.

Pettigrew or any injuries caused by them. [ 130 ] The other evidence, beside that of Ms. Pettigrew, that supports the Crown’s position is the initial answer by Ms. Pettigrew to the 911 operator about what had happened. She said “ some guy hit him...- he hit him a lot of times”. Further, Mr. Pettigrew said to Cst Harper : “Jack beat me for no reason”.

Further, the police noted that the window was broken through both panes in a jagged way approximately 6 inches across and the evidence suggests that the glass was outside, not inside which is consistent with the glass being broken from the inside. [ 131 ] As noted above I find Mr. Matchett’s evidence on this point to be believable in that he didn’t intend to grievously harm Mr. Pettigrew but rather defend himself (and Ms. Pettigrew) from Mr. Pettigrew. I do not accept that Mr. Matchett knocked Mr. Pettigrew out by pushing him through the window and then punching him repeatedly with either one fist or both. Ms.

Pettigrew’s evidence and the other evidence on this point is not consistent nor reliable in my view. Accordingly, the Crown has not disproven beyond a reasonable doubt that Mr. Matchett did not intend to cause grievous bodily harm to Mr. Pettigrew in these circumstances. This leads me to analyse the last of the four elements of section 34 (1). Proportionality

[ 132 ] The final element of s 34 (1) is whether the force used was no more than the accused reasonably believed was necessary to defend himself in the circumstances. As noted above, this is both a subjective and objective test. The Crown argued, as noted above, that even if I accept that only one punch was used in this case, that that force and its serious consequences was much more than was necessary to defend against Mr. Pettigrew’s perceived assault. [ 133 ] It was interesting to me when Mr.

Matchett gave his evidence about the encounter with Mr Pettigrew that he appeared surprised by the consequences of the punch he admitted to. He explained that he was not a fighter or a boxer and had no training other than karate as a 9 or 10 year old. He used the force he felt was necessary in the split second he had to make a decision and didn’t continue the fight even though Mr. Pettigrew came at him again. [ 134 ] For similar reasons that I have explained above, I found Mr. Matchett’s evidence believable on this point.

Even if I didn’t believe him I have significant difficulties and doubts about the theory of facts advanced by the Crown. [ 135 ] The question is now whether the force was proportionate to the perceived attack. Certainly in hindsight perhaps it could be said that Mr. Matchett may have been able to fend off the very inebriated Mr. Pettigrew by pushing him into the bed or by grabbing Ms. Pettigrew perhaps and trying to leave the bedroom. However, the cases are clear that the objective measurement of proportionate force in self-defence cases require a tolerant approach.

Using such an approach here, I am satisfied that the force Mr. Matchett used in this case was reasonably proportionate to the threat he perceived and accordingly, the Crown has not disproven this element of self-defence. [ 136 ] In sum, as the Crown has not raised a reasonable doubt of any of the s 34 (1) self-defence elements I must acquit the accused. Sections 37 and 27 [ 137 ] As I have found that the Crown has not disproven the elements of section 34 (1) which is more stringent than the

section 37 defence, there is no need for me to review all of the elements of

section 37 here. However, I will add that in my view, I found that Mr. Matchett’s evidence that he was also trying to protect Ms. Pettigrew was believable in the circumstances and supported by the evidence heard on the 911 call where she again asked him to stay and help - which he did.

Section 37 would also have been available on these facts to acquit Mr. Matchett. [ 138 ] I will not comment on the applicability of

section 27 here one way or the other as it is not necessary. Conclusion [ 139 ] I find Mr. Matchett not guilty of the offence of aggravated assault as charged. Heard on the 19 th - 21 st days of October and the 17 th day of November, 2010. Dated at Calgary, Alberta this 7th day of December, 2010.

K.M. Eidsvik J.C.Q.B.A. Appearances: Ms. Karuna Ramakrishnan Alberta Justice for the Crown Mr. Joel Chevrefils Wolch Hursch Dewit Silverberg & Watts for the Accused