R. v. Aguirre, 2018 BCPC 331

Citation: R. v. Aguirre 2018 BCPC 331 Date: 20181218 File No: 249302-2-C Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. JOSHUA MATEO AGUIRRE REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE W. LEE Counsel for the Crown: Mark Myhre Counsel for the Defendant: Emmet Duncan, Tony Tso Matt James (Articled Student) Place of Hearing: Vancouver , B.C. Dates of Hearing: October 30, 31, November 2, 8, 2018 Date of Judgment: December 18, 2018 Corrigenda were released by the Court on December 18, 2018 and January 2, 2019. The corrections have been made to the text

and the Corrigenda are appended to this document. INTRODUCTION [ 1 ] Joshua Mateo Aguirre faces charges that on November 5, 2017, in the City of Vancouver, B.C., he did the following: 1. Committed aggravated assault of Willow Riley contrary to s. 268(2) of the Criminal Code . 2. In committing assault of Willow Riley, did carry, use or threaten to use a weapon or an imitation weapon contrary to s. 267 (

a) of the Criminal Code . 3. Committed aggravated assault of Daniel Ackerman contrary to s. 268(2) of the Criminal Code . 4. In committing assault of Daniel Ackerman, did carry, use or threaten to use a weapon or an imitation weapon contrary to s. 267 (

a) of the Criminal Code . 5. In committing assault of Daniel Yi, did carry, use or threaten to use a weapon or an imitation weapon contrary to s. 267 (

a) of the Criminal Code . [ 2 ] These charges relate to an incident in the early morning hours outside an entertainment club known as Brandi’s Show Lounge located on the 5 th floor of a building at the corner of Dunsmuir Street and Hornby Street in Vancouver BC. [ 3 ] Mr. Aguirre admits to striking Willow Riley and Daniel Ackerman with a stanchion, and attempting to hit Daniel Yi with the same stanchion. A stanchion is a metal post with a large round base.

This particular stanchion was being used to hold up guide ropes at the entrance to Brandi’s Show Lounge. [ 4 ] The issue is not whether the assaults occurred, but whether Mr. Aguirre was acting in self-defence within the meaning of s. 34 of the Criminal Code of Canada . ADMISSION OF FACTS [ 5 ] The Crown and the Accused have agreed on the following facts: 1. Brandi’s Show Lounge (“Brandi’s”) is an adult entertainment club located at 595 Hornby St. in Vancouver, B.C. 2.

The video on the CD marked as Exhibit 2 (the “Brandi’s Video”) accurately portrays events that occurred near the entrance to/exit from Brandi’s beginning at approximately 12:50 a.m. on November 5, 2017. 3. At approximately 12:55 a.m. on November 5, 2017, Cst. Russell Sargent of the Vancouver Police Department arrived in front of Brandi’s. 4. Cst. Sargent identified two, and only two, injured parties on scene: a. Willow Riley was laying on the ground, bleeding from the ear, and b.

Daniel Ackerman was sitting on the steps of the Starbucks on the north-east corner of Hornby St. and Dunsmuir St., bleeding from the head. 5. Cst. Sargent described Riley as “completely incoherent and screaming”, and he was unable to obtain any information from her at the time. 6. At approximately 12:58 a.m. on November 5, 2017, the accused, Joshua Aguirre, was taken into custody by members of the Vancouver Police Department. 7. When police arrested Mr. Aguirre, he was being held down by David Yi in the 500 block of Howe St. in Vancouver B.C. 8. Howe St. is one block east of Hornby St. in Vancouver B.C. 9.

At the time, Mr. Aguirre was wearing a black long-sleeve shirt and blue jeans. 10. The book of documents titled “Joshua Aguirre Booking Report, November 5, 2017”, and marked as Exhibit 3 in these proceedings, contains an accurate copy of the booking report related to Mr. Aguirre’s arrest on November 5, 2017, and accurate photos of Mr. Aguirre taken at approximately 2:00 a.m. that day. 11. Willow Riley’s blood alcohol content at 2:00 a.m. on November 5, 2017, was measured at 40 mmo/L, which is approximately 180 mg%. 12.

The injuries Willow Riley suffered on November 5, 2017 meet the legal definition of “wound” and “disfigure” as those terms are used in s. 268 of the Criminal Code . 13. The injuries Daniel Ackerman suffered on November 5, 2017, meet the legal definition of “wound” and “disfigure” as those terms are used in s. 268 of the Criminal Code . THE EVIDENCE

[ 6 ] I heard testimony from the accused Joshua Mateo Aguirre, the first complainant Willow Riley, the second complainant Daniel Ackerman, David Yi, who was a doorman at Brandi’s Show Lounge at the time, and Ryley Zucca, who was the manager of a nearby restaurant. I also have the benefit of video evidence. Joshua Mateo Aguirre [ 7 ] Mr. Aguirre was born April 22, 1997, and has a grade 9 education. [ 8 ] In November 2017, Mr. Aguirre was dealing with two medical issues. The first was caused by a dog bite to his right arm, resulting in nerve damage and a weak right arm that affects his ability to grasp objects.

The second was a right knee that was injured while playing rugby. As a result of this injury, Mr. Aguirre says he cannot sprint more than 15 to 20 meters and that his ability to walk is affected if he walks too far. [ 9 ] On November 5, 2017, Mr. Aguirre weighed 220 lbs and stood 6 feet tall. [ 10 ] Mr. Aguirre was at Brandi’s Show Lounge with a person named Bryce. Bryce is a friend of Jamie’s, who is Mr. Aguirre’s friend. Bryce is from Alberta and was visiting with friends that day. The video footage of Bryce showed that he was shorter than Mr.

Aguirre and heavier in weight. [ 11 ] On November 5, 2017, Jamie invited Mr. Aguirre to a club called The Granville Strip. Bryce and another friend named Colton accompanied them. The group were at the club for about 45 minutes although later in his evidence Mr. Aguirre said he did not know how long they were at The Granville Strip. While at the club, Mr. Aguirre had two drinks of vodka and pineapple juice. [ 12 ] When the four decided to leave, Mr. Aguirre suggested going to Brandi’s Show Lounge. Jamie and Colton declined and left. Bryce accompanied Mr. Aguirre to Brandi’s Show Lounge. [ 13 ] At Brandy’s, Mr.

Aguirre had another drink of vodka and pineapple juice. Bryce had one drink too. [ 14 ] When it came time to leave the club, Mr. Aguirre and Bryce took the elevator to the building exit. Later, evidence showed that the other people were in the elevator included Willow Riley, Sterling McElroy, Aaron, Elisha, Mark Taylor, and a friend of Mark Taylor’s. Mr. Aguirre did not know any of these people. For ease of reference, I will refer to them by their names as I describe the evidence of Mr. Aguirre. [ 15 ] Mr. Aguirre recalls that Bryce asked Ms. Riley if she worked at the club.

To put this comment into context, Brandi’s Show Lounge is an adult entertainment club featuring exotic dancers. Mr. Aguirre said that Ms. Riley replied with some cheeky remark. [ 16 ] Sterling McElroy was Willow Riley’s boyfriend at the time and he took exception to Bryce’s question. Mr. Aguirre described Mr. McElroy as being really upset and that he was having words with Bryce. [ 17 ] According to Mr. Aguirre, Mr. McElroy said “What the F is the problem?” [ 18 ] Bryce responded “chill the fuck out”. [ 19 ] Mr. Aguirre said the tension level was high, rating it a 10 out of 10. [ 20 ] At the time, Mr.

Aguirre described his level of intoxication as a two or three rating on a scale of 10, with 10 being grossly intoxicated. [ 21 ] Mr. Aguirre was shown the video of the incident and described the events as they unfolded. Mr. Aguirre also testified last, so he had the benefit of listening to all the other evidence and viewing the video a number of times. [ 22 ] The video shows that as Mr. Aguirre and the others left the building, Mr. Aguirre spoke to a doorman on the way out. Mr. Aguirre said that he told the doorman that Mr. McElroy was making threats and to watch out for him.

The doorman said “thanks” and waved him along. The person Mr. Aguirre spoke to was not David Yi. [ 23 ] Mr. Aguirre walked away from the building and turned to wait for Bryce. According to Mr. Aguirre, Sterling McElroy and Bryce were talking to each other. Mr. McElroy was described as being “really loud” and Mr. Aguirre said he heard comments such as “piece of shit”, “what’s up” and “you want a problem?” [ 24 ] Mr. Aguirre is seen raising his fists at Mr. McElroy. Mr. Aguirre said that Mr. McElroy responded by saying “Do you want me and my buddies to smash you out?” [ 25 ] Mr.

Aguirre interpreted this to be a reference to being beat up. [ 26 ] Mr. Aguirre said that he raised his fists to show that he was ready to defend himself. He said to Mr. McElroy “You don’t have to do this”. [ 27 ] One second later, Bryce threw a punch at Mr. McElroy. Mr. Aguirre said he was not expecting this and described the punch as “not cool at all”. [ 28 ] For a brief moment, Mr. Aguirre and Sterling McElroy moved out of the frame of the video. Mr. Aguirre said that he was not fighting Mr. McElroy while out of the camera view. [ 29 ] The video showed that Bryce and Ms. Riley were then fighting, but Mr.

Aguirre said he was not aware of this at the time.

[ 30 ] Mr. Aguirre said that when he turned around, he saw that Aaron was fighting with Bryce. Mr. Aguirre went between Bryce and Aaron and tried to say things like “calm down and stuff”. Mr. Aguirre said he did not want to fight, but also felt he could not leave Bryce as he seemed to be over his head. It should be noted that Aaron was significantly larger than Bryce. [ 31 ] The video showed Mr. Aguirre with his right hand up, palm down. Mr. Aguirre said he was trying to tell people to “chill out, calm down”. His hands were not clenched. [ 32 ] At this point, Mr.

Aguirre felt he was facing four guys, saying to him they were going to “fuck me up”. Mr. Aguirre said they were lunging at him and moving him backwards. Bryce remained behind Mr. Aguirre at this time. Mr. Aguirre’s arms remained extended, palm down. [ 33 ] Mr. Aguirre said he was saying “You don’t have to do this” and was trying to get people to calm down. In response he heard obscenities and threats. Mr. Aguirre said he was scared of being attacked. [ 34 ] The situation escalated further when Aaron picked up a stanchion and threw it at Mr. Aguirre. Mr.

Aguirre said the stanchion struck his right cheek and hit him on the wrist, causing a chipped wrist bone. Mr. Aguirre said the situation was “out of control” then. [ 35 ] Mr. Aguirre described his personal level of fear before being hit by the stanchion as an 8/10 but after being hit it was 10/10. He said he feared for his life. [ 36 ] Mr. Aguirre and Bryce continued to be backed up onto Hornby Street. Mr. Aguirre said there were four or five guys screaming at him. He heard shouts of “we’re going to fuck you up” and “you’re a piece of shit”. During this time, the video shows that Mr.

Aguirre’s hands were raised and extended with the palms at an angle facing downward. His fists were not clenched. [ 37 ] Mr. Aguirre said he was trying to convey that he did not want to fight. [ 38 ] Something struck Mr. Aguirre in the ear, but he did not know what. [ 39 ] Mr. Aguirre said he did not turn to run away. He did not want to turn his back on five guys who wanted to beat him up. Mr. Aguirre said he did not want to run blindly into traffic and that due to his knee injury he knew he would be caught if he ran. [ 40 ] The video showed Bryce throwing the stanchion back at the oncoming group, but Mr.

Aguirre was not aware that this occurred at the time. [ 41 ] Mr. Aguirre recalls that he then picked up the stanchion and swung it at Sterling McElroy. The video showed that the stanchion was brought up over Mr. Aguirre’s head and then brought down toward Sterling McElroy. [ 42 ] Mr. Aguirre agreed that a hit from the stanchion could potentially kill someone. [ 43 ] Mr. McElroy dodged the stanchion and was not hit. Mr. Aguirre said that swinging the stanchion was the “only thing I could do to keep him back”. [ 44 ] Mr. Aguirre said he was facing Mr.

McElroy, but was saying to all the advancing group to back up and “don’t do this”. [ 45 ] The people approaching Mr. Aguirre at this time included David Yi, but Mr. Aguirre thought that Mr. Yi was part of the mob of people trying to get at him. [ 46 ] Mr. Aguirre recalls swinging the stanchion at others over the next few seconds. He said his intent was to keep people back. [ 47 ] Mr. Aguirre said that he felt surrounded and that he was in “survival mode”. [ 48 ] He said he feared that if he dropped the stanchion it would be used against him like before. [ 49 ] Mr.

Aguirre testified that if people stopped advancing on him, then he would have dropped the stanchion. [ 50 ] Mr. Aguirre said he was unable to focus on any one person and that he believed that multiple persons were coming at him. [ 51 ] He said that from the corner of his left eye he saw someone coming at him with hands up. Mr. Aguirre swung the stanchion from his left shoulder and struck Ms. Riley. [ 52 ] I note that in viewing the video, I could not see if Ms. Riley’s hands were raised. In fact, she was holding onto some coats at the time she was struck. [ 53 ] Mr.

Aguirre said that it was only at the last second that he saw Ms. Riley approaching him. He did not realize at the time that the person approaching him was a woman. He said he was focused on multiple people and was not individualizing. Mr. Aguirre agreed though that he had to have looked at Ms. Riley just before he struck her. [ 54 ] In viewing the video, Mr. Aguirre agrees that David Yi was closest to him when Willow Riley was struck. [ 55 ] Moments later, Mr. Aguirre moves off screen and cannot be seen for the remaining duration of the video. [ 56 ] While off screen, Mr.

Aguirre said that people kept lunging toward him. He recalls swinging the stanchion again to keep people back. [ 57 ] Mr. Aguirre was moving backward with his left shoulder angled back when he heard something over his left shoulder. He

turned and through his peripheral vision saw a person running at him. This was David Ackerman. Mr. Aguirre said that Mr. Ackerman was bigger than everyone else and described him as a “charging bull”. [ 58 ] Mr. Aguirre said he barely had time to react. He turned and hit Mr. Ackerman on the head with the stanchion. [ 59 ] Mr. Aguirre said he swung the stanchion to create space with the hope to warn off Mr. Ackerman, but Mr. Ackerman was too close and was hit. [ 60 ] At the time, Mr. Aguirre said he was faced with only one person directly in front of him, lunging at him. This was David Yi. [ 61 ] Mr.

Aguirre said others got closer to him and were yelling at him. He recalls swinging the stanchion again at David Yi. He recalls that Mr. Yi was yelling at him, but he does not remember what was said. At that point, Bryce grabbed David Yi in a bear hug. Mr. Aguirre said that everything paused at that moment. He then dropped the stanchion and he and Bryce ran away. [ 62 ] Mr. Aguirre recalls that his knee hurt. He and Bryce then started to walk rapidly, rather than run. Four people pursued them. The pursuers caught Bryce and punched him in the face. Mr. Aguirre thinks Bryce was knocked unconscious.

The pursuers then caught Mr. Aguirre. He was punched in the face and went to the ground. He recalls being kicked while on the ground. David Yi then got on top of Mr. Aguirre and shouted that the police were on their way. Mr. Aguirre said he was still being kicked while being held down by Mr. Yi until the group ran away. [ 63 ] Mr. Yi continued to hold Mr. Aguirre on the ground until the police came. [ 64 ] Mr. Aguirre thinks he asked Mr. Yi to get off him, but does not recall offering Mr. Yi money to do so. [ 65 ] Until the police arrived, Mr. Aguirre thought Mr. Yi was part of the group pursuing him.

He said he did not know Mr. Yi was a security person from Brandi’s Show Lounge until later. [ 66 ] With respect to the stanchion hits on Ms. Riley and Mr. Ackerman and the attempted hit on Mr. Yi, Mr. Aguirre said: “I was willing to hit them but didn’t want to. I was just trying to keep them back from me.” Mr. Aguirre stated that he was willing to hit anyone who was attacking him. [ 67 ] Mr. Aguirre denied any specific intent to hit anyone in the head but he said he was prepared to do so if someone got close. [ 68 ] Mr.

Aguirre said that if he dropped the stanchion, he feared that the people pursuing him would drop him to the ground and use the stanchion against him. He said he was worried about being hurt. [ 69 ] Mr. Aguirre denied that he would have been able to hold the stanchion out horizontally to keep people away from him. He said the stanchion would fall to the ground if he tried to do this. The Video Evidence [ 70 ] I have the benefit of video footage that shows part of this incident.

The video is taken from a camera located at the upper left of the entranceway to Brandi’s Show Lounge when one is looking directly at the entranceway from the street. The camera is pointed at a roughly north-northeast direction and shows the side of the entranceway and also part of Hornby Street. [ 71 ] The video is also time stamped. No issue was made about the accuracy of the time stamp and I accept that the time indicated on the video is accurate. The relevant events shown on the video are as follows. [ 72 ] At time stamp 00:50:17, Mr.

Aguirre and others are seen leaving the club. [ 73 ] Bryce punches Sterling McElroy at the 00:50:29 mark. [ 74 ] At 00:50:34, Mr. Aguirre is trying to pull Aaron away from Bryce while Willow Riley and Bryce are fighting. [ 75 ] At 00:50:37, Mr. Aguirre has his hands up with palms down while facing Aaron and Mark Taylor. Sterling McElroy is close by. [ 76 ] At 00:50:42, Mr. Aguirre is seen backing up with his arms extended. [ 77 ] At 00:50:44, Aaron picks up the stanchion and throws it. [ 78 ] At 00:50:49, Bryce throws the stanchion. [ 79 ] At 00:50:51, Mr. Aguirre picks up stanchion. [ 80 ] At 00:50:53, Mr.

Aguirre takes an overhead swing at Sterling McElroy with the stanchion, bringing the stanchion from his left shoulder down to his right. [ 81 ] At 00:50:56, Mr. Aguirre swings the stanchion a second time, moving from left to right. [ 82 ] At 00:50:57, Willow Riley leaves the sidewalk to walk toward Mr. Aguirre. She is holding a coat in her left arm. Her arms are not raised. [ 83 ] At 00:51:02, Mr. Aguirre takes an overhead swing at some people while stepping forward. At least two people move back in response.

[ 84 ] At 00:51:05, Willow Riley continues to walk toward Mr. Aguirre. She switches the coat to her right arm. David Yi is before Mr. Aguirre and in front of and to the left of Ms. Riley. Ms. Riley approaches Mr. Aguirre while on Mr. Yi’s right. [ 85 ] At 00:51:09, Mr. Aguirre swings the stanchion from his left shoulder and then across to strike Ms. Riley on the right side of her head. She immediately falls to the ground. [ 86 ] At 00:51:12, Mr. Aguirre backs up off screen. Mr. Yi is shown approaching Mr.

Aguirre with his extended arms lifting up and down and making a grabbing motion. [ 87 ] At 00:51:19, Aaron walks off screen in the direction of Mr. Aguirre. [ 88 ] At 00:51:23, Sterling McElroy walks off screen in the direction of Mr. Aguirre. [ 89 ] Over the next three minutes, Mark Taylor is seen on and off the screen helping Ms. Riley to the sidewalk and entering and exiting the building. [ 90 ] At 00:52:49, a person with a white shirt is seen returning the stanchion to its place. [ 91 ] At 00:55:09, the police arrive. [ 92 ] At 00:56:09, Sterling McElroy returns on screen and goes to the fallen Ms.

Riley. [ 93 ] At 01:06:28, David Yi returns on screen. David Yi [ 94 ] In November 2017, David Yi was employed as a doorman at Brandi’s Show Lounge. At the time, he stood 6’2” and weighed 220 lbs. On November 5, 2017, Mr. Yi was dressed in plain street clothes which consisted of a black jacket and black pants. There were no markings on his clothes to show that he was associated with Brandi’s Show Lounge. [ 95 ] Mr. Yi described the stanchions used at the entrance to Brandi’s Show Lounge. He said they stood about three to three and a half feet high and weighed roughly 25 to 35 lbs. Later in his evidence, Mr.

Yi said that the base of the stanchion is a sturdy steel disc with a slight slope down to the edge of the base. The base is one half to one inch thick. [ 96 ] Mr. Yi recalls that the incident of November 5, 2017, started at 12:50 a.m. [ 97 ] Brandi’s Show Lounge is located on the 5 th floor of the building located at Dunsmuir and Hornby Street in Vancouver B.C. Access to Brandi’s Show Lounge is through a door on Hornby Street leading to an elevator. [ 98 ] Mr. Yi said that at the time in question, two groups had exited the elevator. Mr.

Yi said that Brandi’s security had been notified of an altercation inside the elevator between the two groups. [ 99 ] Upon exiting the elevator, a member from each group was in a loud verbal altercation with the other. Based on other evidence, we know that the two persons engaged in the verbal altercation were Bryce and Sterling McElroy. [ 100 ] During his evidence, Mr. Yi referred to Bryce as “suspect two” and to Mr. Aguirre as “suspect one”, but I will refer to them by their names. [ 101 ] According to Mr. Yi, Sterling McElroy was part of what was described as “group one” and Bryce and Mr.

Aguirre were part of “group two”. [ 102 ] Mr. Yi said that group one was the aggressive group while group two seemed to be trying to leave. [ 103 ] Upon exiting the building, Bryce threw a strike or a punch at Sterling McElroy. Members of group one then approached Bryce. According to Mr. Yi, Mr. Aguirre tried to stop the altercation. Mr. Yi said that Mr. Aguirre was trying to disengage from the situation. Mr. Yi could not recall what Mr. Aguirre was saying at this time. He recalls though that there was lots of shouting from both groups. [ 104 ] Mr. Yi went on to describe the incident based on his recollection.

He then viewed the video of the incident which contradicted some of his earlier description of the incident. For instance, Mr. Yi testified initially that it was Mr. Aguirre who first picked up the stanchion and threw it. The video though showed another person, later identified as Aaron, picking up the stanchion and throwing it. [ 105 ] Mr. Yi said that he had exited a roped-off area at the entranceway and was somewhat close to Ms. Riley when she was hit. Mr. Yi said that prior to being hit, Ms. Riley was shouting hostilities. According to Mr. Yi, everyone was shouting during the incident. Mr.

Yi also said that Ms. Riley displayed “aggressive body language” when she was walking toward Mr. Aguirre. By “aggressive body language”, Mr. Yi said Ms. Riley was clenching and opening her hands, screaming, yelling, and making possible threats. Mr. Yi said that Ms. Riley was a member of group one. He said that she was at the forefront of it all and was not trying to disengage. [ 106 ] Mr. Yi said he was just to the left of Willow Riley when she was struck by the stanchion. He said he never saw Ms. Riley try to assault Mr. Aguirre. [ 107 ] After Ms. Riley was hit, the video shows Mr. Yi continue to approach Mr.

Aguirre. Mr. Yi is shown with his arms repeatedly being extended and withdrawn as he walks forward. [ 108 ] Mr. Yi then described what occurred after Mr. Aguirre was no longer shown on the video. Mr. Yi said that a mob of people moved south on Dunsmuir Street. He then saw another male, whom we know to be Daniel Ackerman, running toward Mr. Aguirre. Mr.

Ackerman was described as coming from a south east direction and had no weapons or objects in his hands. Mr. Ackerman was described as crouching lower and lower. Mr. Yi thought Mr. Ackerman was trying to tackle Mr. Aguirre. Mr. Yi recalls Mr. Ackerman saying “what the fuck”. Before Mr. Ackerman could lay a hand on Mr. Aguirre, Mr. Aguirre used what was described as an upward baseball swing with the stanchion, which contacted the front of the head of Mr. Ackerman. [ 109 ] Mr. Yi was approximately five feet away when this occurred. Mr. Ackerman was knocked unconscious. [ 110 ] Mr. Yi recalls telling Mr.

Aguirre to drop the weapon and approached Mr. Aguirre with his arms raised and extended, with his palms pointed downwards. [ 111 ] At this time, Mr. Yi and Bryce were the closest to Mr. Aguirre. [ 112 ] Mr. Yi said that members of group one were jumping toward and then back from Mr. Aguirre. [ 113 ] When Mr. Ackerman was hit, Mr. Yi tried to approach Mr. Aguirre. Mr. Yi recalls that Mr. Aguirre swung the stanchion towards his head area. Mr. Yi moved back to avoid the hit. Bryce then grabbed Mr. Yi in what was described as a “bear hug”. Mr. Aguirre then dropped the stanchion, and Bryce and Mr.

Aguirre fled. [ 114 ] Bryce and Mr. Aguirre moved at what Mr. Yi described as a fast walk or a jog. Mr. Yi said that four to five people pursued them. Mr. Yi was five to ten seconds behind the group. When he reached them, Mr. Yi said that Mr. Aguirre was on the ground being kicked by members of group one. This included Aaron and Mr. McElroy. Mr. Yi told them to stop and held Mr. Aguirre to the ground for about five minutes before the police came. [ 115 ] Mr. Yi did not recall Mr. Aguirre saying anything while being held on the ground. In a statement given to the police after the incident, Mr. Yi said that Mr.

Aguirre offered him $2,000 to let him go. I allowed this statement into evidence based on a ruling that it fell within the test for “past recollection recorded”. However, I place little weight on the statement. Mr. Yi said that his emotions were running high when the statement was given and he expressed concerns about the accuracy of the statement given to the police. In any event, the statement is of little relevance to the issues before me. [ 116 ] Mr. Yi was an independent witness who was sober during the events. In general his evidence was supported by the video.

I found his evidence to be both reliable and credible. Willow Riley [ 117 ] Willow Riley stands 5’10”, and in November 2017, she weighed in the area of 130 to 135 lbs. [ 118 ] Ms. Riley testified that she is suffering from symptoms relating to a traumatic brain injury. She has difficulty finding vocabulary and with her memory. It takes her longer to comprehend matters. She is unable to read more than 20 minutes without suffering from vertigo. [ 119 ] Ms. Riley recalls that in the evening of November 4, 2017, she was having dinner at Gotham Restaurant in Vancouver B.C.

She was there with her boyfriend at the time, Sterling McElroy. She was served wine from a carafe. She is not sure how much she drank, but thinks it may have been equivalent to two nine-ounce glasses of wine. She described herself as being “reasonably intoxicated”. [ 120 ] As they were leaving the restaurant, Ms. Riley received a call from a friend named Danielle, who was celebrating a birthday at Brandi’s Show Lounge. Ms. Riley and Mr. McElroy walked over to Brandi’s Show Lounge. [ 121 ] Ms. Riley did not consume any alcohol while at Brandi’s.

She thinks they stayed for 20 minutes and then went into the elevator to leave the lounge. She was accompanied by Mr. McElroy and three friends, Aaron, Elisha, and Mark Turner, and a friend of Mr. Turner’s. [ 122 ] Ms. Riley said she does not have a clear memory of events in and after the elevator ride. She recalls that when she left the elevator she was carrying a cigarette and Mr. McElroy’s jacket. She said her next memory is waking up in the hospital. [ 123 ] When Ms. Riley was shown the video, she seemed able to recall a few more details. [ 124 ] Ms.

Riley remembered that while in the elevator, someone said to her that she should be dancing. Ms. Riley thinks she responded with a back-handed joke. [ 125 ] After viewing the video, Ms. Riley was able to see Bryce striking Mr. McElroy, but Ms. Riley is unsure why this occurred. Ms. Riley said that she has no recollection of events after the remark about dancing was made. [ 126 ] Ms. Riley also described having suffered significant injuries after being hit by the stanchion.

Daniel Vincent Ackerman [ 127 ] In the early hours of November 5, 2017, Daniel Vincent Ackerman was leaving the Blackbird Pub, located on Dunsmuir Street, Vancouver B.C. He was accompanied by his girlfriend and two co-workers. [ 128 ] The Blackbird Pub is located in a building that also houses Brandi’s Show Lounge, at the northwest corner of Dunsmuir Street and Hornby Street in Vancouver B.C. The main entrance to the Blackbird Pub is on Dunsmuir Street. The main entrance to Brandi’s Show Lounge is on Hornby Street. [ 129 ] At the time, Mr. Ackerman stood 6’3” tall and weighed 300 lbs.

[130] Mr. Ackerman was asked about his intoxication level at the time. On a scale from 1 to 10, with 10 being extremely intoxicated,Mr. Ackerman said that he was an 8. However, he said he had no difficulty walking or talking. [131] Mr. Ackerman’s group left the Blackbird Pub and walked east on Dunsmuir Street, which was in the direction of Hornby Street. As they were walking, Mr. Ackerman saw a male hitting a female with a large steel stanchion. [132] Mr. Ackerman recalls that immediately he ran towards the incident. He remembers he was running toward people and that hewanted to help.

He said he did not recall his intentions beyond that. [133] Mr. Ackerman does not recall saying anything as he ran. [134] He remembers tripping and hitting his chin when he fell over. This was his last memory until he woke up and found that he wasbloodied. [135] Mr. Ackerman suffered significant injuries to his head as a result of being hit by the stanchion. [136] Mr. Ackerman agreed with defence counsel that he probably wanted to help in whatever way was needed. He said he probablywanted to stop Mr. Aguirre. Ryley Zucca [137] In November 2017, Mr.

Zucca was the manager of the Royal Dinette Restaurant located on the 1st floor of the same buildingwhere Brandi’s Show Lounge is located. [138] The entrance to Brandy’s Show Lounge on Hornby Street leads to a hallway where the basement of Royal Dinette can beaccessed. On November 5, 2017, Mr. Zucca was at the basement doorway when he heard a commotion. He walked from the doorwaydown the hallway to the entrance of the building, but remained inside the building. [139] Mr. Zucca said he heard a lot of people yelling. He saw a whole bunch of people pushing, shoving, throwing punches, andwielding objects.

He saw a man pick up a stanchion and begin swinging it. The fight then escalated and spilled out to the streets. [140] Mr. Zucca recalls that a couple of people were “sort of hit” by the stanchion, and that the stanchion eventually connected to theside of a woman’s head, dropping her to the ground immediately. [141] He said that shortly thereafter, most people involved scattered. [142] Mr. Zucca went back into the restaurant to ask an employee trained in First Aid to go outside and look at the victim. Mr. Zuccaremained in the restaurant to call the police. [143] Prior to the female victim being hit, Mr.

Zucca said that she was chaotic and loud. He said there was incoherent yelling, that thewoman was very upset, and that she was imploring people to stop fighting. He thought that she seemed concerned about someone else’swell-being. [144] Mr. Zucca recalls hearing the female victim, as well as others yelling the word “stop”. This was one of the few distinguishablewords that he heard. [145] Mr. Zucca said that the female victim stood out for him. He described her as being very loud and very blonde. [146] Mr.

Zucca also recalls that the woman was knocked out after being hit and that when she awoke, she could not remember whathappened. [147] In viewing the video of the incident, Mr. Zucca cannot be seen. He said he stood inside the doorway when he saw the events. At times, people stood in front of the doorway and so his view was likely obscured at times. [148] I did not find Mr. Zucca’s evidence to be reliable. His vantage point was such that he did not have a full view of the incident. He also did not begin to witness the scene until after it started and so may have lacked the context to interpret what was occurring.

ANALYSIS [149] Section 34(1) of the Criminal Code of Canada reads: Defence — use or threat of force 34

(1) A person is not guilty of an offence if (

a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being madeagainst them or another person; (

b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from thatuse or threat of force; and (

c) the act committed is reasonable in the circumstances. [150] This

section sets out three elements to self-defence, which have been stated in such cases as R. v. Bengy, 2015 ONCA 397, [2015] O.J. No. 2958; R. v. Cunha, 2016 ONCA 491; and, R. v. Sandhu, 2018 BCPC 122. Those elements are as follows.

Reasonable belief – the accused must reasonably believe that force or threat of force is being used against him or someone else. Defensive purpose – the subjective purpose for responding to the threat must be to protect oneself or others; and Reasonable Response – the act committed must be objectively reasonable in the circumstances. [151] There are a number of key principles that I must keep in mind. 1. Mr. Aguirre is presumed innocent until the Crown proves otherwise beyond a reasonable doubt. 2. The Crown has the onus to prove beyond a reasonable doubt that Mr. Aguirre did not act in self-defence.

Because there are threeelements to self-defence, the Crown only needs to prove that any one element of self-defence is absent for the defence to fail. 3. Mr. Aguirre is not required to prove he acted in self-defence. 4. The consequences of Mr. Aguirre’s actions, being the severe injuries suffered by Ms. Riley and Mr. Ackerman, are not a factorfor me to consider when determining if Mr. Aguirre’s actions were reasonable. The significant consequences of an action, such as thedeath of a victim, does not prevent a self-defence argument from succeeding: see, for example, R. v. Parente, [1988] O.J.

No. 1087; R. v.Kindt [1988] B.C.J. No.696; and R. v. Sandhu, 2018 BCPC 122, at paragraph 10. [152] Because the accused testified at trial, I must analyze the evidence using the framework set out in the decision R. v. W(D), (SCC), [1991] 1 S.C.R. 742. At paragraph 28 of that decision, the Court said: 28 ... A trial judge might well instruct the jury on the question of credibility along these lines: First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [153] I will not carry out a full description of the W (

D) analysis, except to say that I must decide if I accept the evidence of Mr.Aguirre in whole or in part, or, if I do not accept any of his evidence, I must look at all other evidence. [154] In assessing Mr. Aguirre’s evidence, I have come to the conclusion that I do not accept his evidence as a whole for the followingreasons: 1. During much of the incident, Mr. Yi was closest to Mr. Aguirre. Despite this, Mr. Aguirre said he never heard Mr. Yi speakingto him, and yet, he was able to hear various calls from other people to “get him” or to harm him. I find it unlikely that Mr. Aguirre couldnot hear Mr. Yi. 2.

At times, Mr. Aguirre said he was focussed on the mob as a whole, but at other times, he said he was focussed just on Mr. Yi,such as just before he struck Ms. Riley. This is a contradiction. 3. Mr. Aguirre said he was swinging the stanchion to make space for himself. Yet in one instance, he stepped forward to swing thestanchion at two people, both of whom stepped back to avoid the hit from the stanchion. In my view, Mr. Aguirre was at least in thisinstance aggressively moving toward people rather than simply making space for himself. [155] Notwithstanding these concerns, I have also noted that Mr.

Aguirre admitted he was willing to hit people with the stanchion inan effort to protect himself. He also testified that if people stopped advancing on him, he would have dropped the stanchion. This didoccur when Bryce put Mr. Yi into a bear hug. [156] Although I do not accept Mr. Aguirre’s evidence as a whole, there are aspects of his evidence that I do accept and I will need toconsider that along with the other evidence in deciding this matter. [157] Both counsel have provided me with several cases for my consideration.

I have reviewed all of them, but will only refer to theones that I find to be applicable. [158] In assessing this case, I will focus on the three elements of self-defence. The first question is whether Mr. Aguirre reasonably believed that force or threat of force is being used against him or someoneelse. [159] Bryce’s comments to Ms. Riley started a chain of events. When the parties exited the building, Mr. Aguirre did raise his fists toMr. McElroy, but Mr. Aguirre said this was to show that he was prepared to defend himself. When Bryce threw a punch at Mr.McElroy, circumstances took a drastic turn.

Aaron is seen in the video advancing on Bryce. Mr. Aguirre is then seen trying to separateAaron and Bryce. His arms are raised with palms down and it appears to me that Mr. Aguirre was trying to stop the altercation. Theevents turn even worse when Aaron threw the stanchion. [160] Mr. Yi’s evidence was that the members of group one, which included Sterling McElroy and Aaron, were the aggressors. [161] In my view, there was actual force being used against Mr. Aguirre and Bryce. I find that Mr. Aguirre reasonably believed thatforce was being used against him and Bryce.

The second question is whether Mr. Aguirre’s subjective purpose for responding to the threat was to protect him or others. [ 162 ] Throughout his evidence Mr. Aguirre said he acted to defend himself, and that he swung the stanchion to keep people away and create space for himself. I do have concerns that in at least one instance, Mr. Aguirre stepped forward to swing at two people and this is more consistent with an attack as opposed to acting in defence. However, Mr. Yi’s evidence supported Mr. Aguirre in characterizing his actions as being defensive. I also noted that when Mr.

Yi was put into a bear hug by Bryce, Mr. Aguirre dropped the stanchion and ran. This was consistent with Mr. Aguirre’s claim that he was intending to use the stanchion for defensive purposes only. [ 163 ] Based on all the evidence, I find the Crown has failed to prove beyond a reasonable doubt that Mr. Aguirre’s subjective purpose for responding to the threat was not to defend himself. The third question is whether the act committed by Mr.

Aguirre was objectively reasonable in the circumstances. [ 164 ] In determining whether a response is reasonable, I will examine the items listed at s. 34(2) of the Criminal Code of Canada , which sets out a non-exhaustive list of factors that the court must consider to determine if a response was objectively reasonable. The nature of the force or threat. [ 165 ] In my view, the threat facing Mr. Aguirre came from a group of people. Different people were advancing on Mr. Aguirre at different times over a short period of time. [ 166 ] Mr. Yi was for the most part the closest person to Mr. Aguirre.

He wore nothing to identify himself as security for Brandi’s Show Lounge. He did not say anything to identify himself as such. It was reasonable for Mr. Aguirre to perceive that Mr. Yi belonged to the group of people that was threatening Mr. Aguirre. [ 167 ] I find it reasonable that Mr. Aguirre perceived that he was being threatened by a group of people. The extent to which the use of force was imminent and whether there was other means available to respond to the potential use of force. [ 168 ] Forty-three seconds elapsed from the time Bryce punched Mr. McElroy to the time Mr. Aguirre went off screen.

It is another one and one-half minutes later that a person is shown on the video returning the stanchion to the front of Brandi’s Show Lounge. This suggests to me that the entire altercation, starting from when Bryce threw the punch, likely lasted no more than two minutes. [ 169 ] The throwing of the stanchion toward Mr. Aguirre, the aggressive language, and then the approach of various individuals toward Mr. Aguirre, all reasonably led to the understanding that the use of force against Mr. Aguirre was not just imminent but, in fact, occurring at the time. [ 170 ] It was suggested that Mr.

Aguirre had options available to him to respond to the potential use of force. [ 171 ] Could Mr. Aguirre have hidden behind David Yi? Mr. Aguirre did not know Mr. Yi was a security guard. He thought Mr. Yi was one of many individuals who were acting aggressively toward him. [ 172 ] Could Mr. Aguirre have moved back when Ms. Riley approached him? That was an option, but Mr. Aguirre said he only saw Ms. Riley out of the corner of his eye and had not realized who Ms. Riley was. Clearly, he felt threatened and swung the stanchion at whoever it was that he glimpsed to be approaching him. [ 173 ] Could Mr.

Aguirre have used the stanchion to poke out at oncoming people, rather than swinging it? Mr. Aguirre testified to a weakness in his arm and that it was difficult to hold the stanchion outwards. This did not appear to be a realistic option for him. [ 174 ] Could Mr. Aguirre have simply backed away or even turned and run away? Mr. Aguirre expressed fears of running into traffic. He also said that due to his leg injury he was only able to run a short distance and he feared being caught and then beaten. Given that Mr.

Aguirre was already out on Hornby Street without any interaction with cars suggests that his fear of traffic was not realistic. His concerns about being unable to run away were valid though as shown by the fact that he did try to run and was caught by his pursuers and beaten. [ 175 ] Could Mr. Aguirre have avoided Mr. Ackerman, rather than hitting him with the stanchion? As in the case of Ms. Riley, Mr. Aguirre saw Mr. Ackerman out of the corner of his eye and he reacted in the same manner by swinging out when he saw movement. This suggests a panicked reaction.

The person’s role in the incident. [ 176 ] The aggressors in this incident were the members of group one and Bryce. Mr. Aguirre did nothing to create the incident. He did raise fists at Mr. McElroy, but he said this was just to show that he was prepared to defend himself. When Bryce punched Mr. McElroy, Mr. Aguirre clearly tried to intervene and break up the altercation. Whether any party to the incident used or threatened to use a weapon. [ 177 ] Aaron threw the stanchion and then Bryce threw the stanchion. Mr. Aguirre was the third person to pick up the stanchion.

The size, age, gender and physical capabilities of the parties to the incident [ 178 ] Both Aaron and Mr. McElroy were larger that Mr. Aguirre. Bryce was smaller than these two and Mr. Aguirre expressed concern that Bryce was over his head during the confrontation.

[179] Ms. Riley was of course smaller that Mr. Aguirre whereas Mr. Ackerman was larger. However, given that Mr. Aguirre onlycaught a glimpse of each victim, their sizes were not a consideration for him. The nature, duration, and history of any relationship between the parties to the incident, including any prior use or threat offorce and the nature of that force or threat. [180] The parties had no involvement with each other prior to the exchange of words in the elevator.

Any history of interaction or communication between the parties to the incident. [181] There was no prior history between the parties until the exchange of words in the elevator, which did not involve Mr. Aguirre. The nature and proportionality of the person’s response to the use or threat of force. [182] Mr. Aguirre responded using the same weapon that was first introduced by Aaron. [183] Mr. Aguirre did not have to pick up the stanchion, although Aaron’s use of it raised the possibility that the stanchion could havebeen used against Mr. Aguirre a second time. Mr.

Aguirre’s picking up of the stanchion may have been a reasonable response if it wereto effectively disarm Aaron. The real question is whether it was a proportionate response to then start swinging the stanchion. [184] In considering the circumstances, I have come to the conclusion that picking up the stanchion and swinging it at people was adisproportionate response. This was precipitated by Aaron throwing the stanchion. However, Mr. Aguirre used the stanchion in adifferent and more dangerous way by swinging it. It is for this reason that I find that the response was disproportionate.

Whether the act committed was in response to a use or threat of force that the person knew was lawful. [185] Mr. Aguirre was threatened and a stanchion was thrown at him. There is no dispute that these were not lawful uses of forceagainst Mr. Aguirre. Decision on whether Mr. Aguirre actions were objectively reasonable in the circumstances. [186] I have considered the fact that the events occurred rapidly. From the time Bryce struck Mr. McElroy, until Aaron threw thestanchion, 13 seconds elapsed. From the time Bryce struck Mr. McElroy, until Mr.

Aguirre was off screen, 43 seconds had elapsed. [187] I accept that it is dangerous to use a repeated viewing of the video to assess the time that Mr. Aguirre had to react to the situationor to assess the threat that was before him. [188] In the decision R. v. Cunha, 2016 ONCA 491 the court stated: [24] I accept the appellant’s argument that “the trial judge parsed the appellant’s reactions down to the split-second and held him to astandard of perfection, informed by his hindsight knowledge that Mr. Barros was actually unarmed and that Mr.

Massaquoi had alreadyleft the house through the back door.” This was an error in principle, since the trial judge lost sight of the whole factual context and thetableau of the evidence. [25] This was plainly a case for the court to keep in mind that in considering the reasonableness of the defendant’s use of defensiveforce, the court must be alive to the fact that people in stressful and dangerous situations do not have time for subtle reflection. However,the trial judge held the appellant to a standard of perfection. [189] With respect to whether Mr.

Aguirre’s actions were objectively reasonable in the circumstances, I refer to the decision R. v.Sandhu, 2018 BCPC 122 , a case where the accused stabbed a victim to death. The accused argued that this was in self-defenceand the court held that the Crown was unable to disprove this. Despite the serious consequences, the accused was acquitted. [190] At paragraph 110 of the decision, Judge Sutherland stated: [110] The accused was under sufficient attack to warrant using force to repel the attack. He acted out of fear and probably inaccordance with self-preservation instincts.

He had little time to weigh all of his options. Even taking a tolerant approach to theobjective analysis of the reasonableness of the accused’s use of the knife to defend himself, I conclude that he probably, or most likely,overreacted in an unreasonable and thus unjustified way. But as noted above, “most likely” or “probably” falls short of the very highstandard of proof beyond a reasonable doubt. [191] In the decision R. v. Kandola, (BC CA), the victim and four other men, armed with weapons, came to theaccused’s home and tried to break in with the apparent intent of assaulting the accused.

There were a number of people in the house atthe time. Using a handgun, the accused blindly fired three warning shots out the window, one of which struck the victim and killed him. [192] The trial judge convicted the accused on the basis that his actions in firing the gun were unlawful, thus, disentitling him fromclaiming self-defence. [193] The decision was overturned by the British Columbia Court of Appeal, which made these comments: 20 There are two reasons why, in my view, the trial judge's reasoning cannot be sustained.

The first has to do with the nature of thedefence found in s. 34(1) of the Criminal Code. 21 In Canada the defence of self-defence has been codified. Thus, the limits of the defence are to be found in a proper constructionof the various statutory provisions under which the defence can be invoked; Brisson v. The Queen, (SCC), [1982] 2S.C.R. 227, per Dickson, J., as he then was, at p. 238.

22 As has already been noted, a successful defence of self-defence provides a justification for what would otherwise be an unlawfulact of assault. Under s. 34(1), and indeed under all of the self-defence provisions in the Criminal Code, the force applied in self-defenceis justified if the requirements of the statute are met. 23 It is important to note that it is the force itself, and not the consequence of the force used, which is justified if the limitingconditions of the statute are met.

The only consequences of the application of force in self-defence, which are specifically mentioned inthe statute, are death and grievous bodily harm. Those consequences are relevant only to the extent they are intended. 24 The force which is justified under s. 34(1), if all of the conditions for such justification are met, is force which has beenintentionally applied, in the sense that it results from what the law recognizes as a volitional act. The accidental application of forceneeds no defence.

The only state of mind which the sub-section recognizes as relevant, apart from the basic one required for theintentional application of force, is the ulterior intention to cause death or grievous bodily harm. If either of those specific intentsaccompany the volitional application of force used in self-defence, the defence described in s. 34(1) is lost. 25 Recklessness is a "state of mind", in the sense the law recognizes it as at least part of the fault element of certain crimes; e.g. s.220, causing death by criminal negligence. But recklessness is not mentioned as a relevant state of mind in s. 34(1).

Logically, ofcourse, force which is so recklessly applied in self-defence as to be excessive will be unnecessary force and by that finding the defencewill fail. But what deprives the accused of the defence in that circumstance is his recklessness as to the measure of force necessary, notrecklessness as to the consequences, or the risk of consequences, flowing from the application of that force.

While that may seemsomewhat subtle, it is an important distinction which flows from the previously mentioned fact that it is the force itself, and not theconsequences of its use, which is justified on a successful defence of self-defence. 26 If Parliament had intended to deny the defence to all who are reckless as to the consequences of the force used in self-defence,other than by establishing a standard of objective necessity for the measure of the force used, it was surely capable of saying so in termsas clear as those by which it has denied the defence, in s. 34(1), to any person who intends either death or grievous bodily harm.

But inreaching the conclusion he did in this case, the trial judge has effectively written that limitation into s. 34(1). With respect, there isnothing about the plain wording of the sub-section, or the need for its effective application, which would justify such a construction. 27 The second reason which leads me to conclude the trial judge erred in his approach to s. 34(1) is the fact the law has longrecognized the need for a tolerant approach to the objective measurement of proportionate force in genuine self-defence cases. In Brownv.

United States (1921), 256 U.S. 335, at p. 343, Holmes, J., noted: Detached reflection cannot be demanded in the presence of an uplifted knife. A similar expression of opinion was voiced by Lord Morris in Palmer v. The Queen (1971), 55 Cr.App.R. 223, at p. 242 of the report: If there has been attack so that defence is reasonably necessary, it will be recognised that a person defending himself cannot weigh to anicety the exact measure of his necessary defensive action. The same principle has been adopted and applied by Canadian courts: see, for example; Rex v. Ogal (1928), (AB CA),50 C.C.C. 71 (Alta.S.C.

App.Div.), at pp. 73-4, Regina v. Preston (1953), (BC CA), 106 C.C.C. 135 (B.C.C.A.), at p.140, Regina v. Antley, (ON CA), [1964] 2 C.C.C. 142 (Ont.C.A.), at p. 147, and Regina v.

Baxter (1975), (ON CA), 27 C.C.C. (2d) 96 (Ont.C.A.), at p. 111. 28 It would be inconsistent with this principle to expect a person, who is under an attack of sufficient magnitude to warrant resort topotentially deadly force, even though no deadly intent is present, to stop and reflect upon the risk of deadly consequences which mightresult from taking such defensive action. [194] The British Columbia Court of Appeal went on to acquit Mr. Kandola of manslaughter. [195] I have considered the factors set out in s. 34(2) of the Criminal Code as well as the case law. It was reasonable for Mr.

Aguirreto hold a view that a group was pursuing him. A weapon was used against him. Mr. Aguirre took control of that weapon in an attempt tokeep oncoming people from approaching him. Most likely, Mr. Aguirre’s actions were taken in panic. He was reckless in using thestanchion in the way that he did. [196] Nevertheless, despite the horrible consequences, I am not satisfied beyond a reasonable doubt that making use of the stanchionwas unreasonable in the circumstances. This is so even though I find that the use of the stanchion was a disproportionate response in thecircumstances.

Proportionality is only one of many factors I need to look at when assessing reasonableness. When I consider all thefactors, I am not satisfied that Mr. Aguirre’s actions were proven not to be objectively reasonable. CONCLUSION [197] The Crown must disprove beyond a reasonable doubt any one of the three components of self-defence, that being: 1. That Mr. Aguirre had a reasonable belief that force or threat of force is being used against him and Bryce. 2. That the subjective purpose of Mr. Aguirre’s response to the threat was to protect himself and Bryce. 3. That the actions of Mr.

Aguirre were objectively reasonable in the circumstances. [198] I find that the Crown has not been able to disprove any of these three components to the extent required and, as dictated by thelaw, I acquit Mr. Aguirre of all charges.

_____________________________ The Honourable Judge W. Lee Provincial Court of British Columbia CORRIGENDUM - Released December 18, 2018 In my Reasons for Judgment dated December 18, 2018, the following change has been made: [1] On page 3, at paragraph 7, “2017” should be changed to “1997”. The sentence should now read as follows: Joshua Mateo Aguirre [7] Mr. Aguirre was born April 22, 1997, and has a grade 9 education. _____________________________ The Honourable Judge W.

Lee Provincial Court of British Columbia CORRIGENDUM - Released January 2, 2019 In my Reasons for Judgment dated December 18, 2018, the following change has been made: [1] On page 4, at paragraph 16, “Stewart McElroy” should be changed to “Sterling McElroy”. The sentence should now read as follows: [16] Sterling McElroy was Willow Riley’s boyfriend at the time and he took exception to Bryce’s question. Mr. Aguirre described Mr. McElroy as being really upset and that he was having words with Bryce. _____________________________ The Honourable Judge W. Lee Provincial Court of British Columbia