R. v. M.M. Date:, 2012 BCPC 72

Citation: R. v. M.M. Date: 20120222 2012 BCPC 0072 File No: 18482-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. M. M. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE ROBERT HAMILTON Counsel for the Crown: S. Elliott Counsel for the Defendant: I. Ferbey Place of Hearing: Surrey, B.C. Date of Hearing: February 7 and 8, 2012 Date of Judgment: February 22, 2012 Introduction [ 1 ] M.M. is charged with the aggravated assault of C.D.T. on May 30, 2011. There is no doubt that Mr. M.M. assaulted Mr. C.D.T. on May 30, 2011, and that Mr. C.D.T.’s injuries sustained in the assault were severe.

The only issue for me to determine in this case is whether, at the time Mr. M.M. assaulted Mr. C.D.T., Mr. M.M. was acting in self-defence. [ 2 ] The statutory defence of self-defence is set out in sections 34 and 37 of the Criminal Code . I have read and considered the British Columbia Court of Appeal’s decision in R. v. Grandin 2001 BCCA 340 and agree with the reasoning in that decision that the defence afforded to Mr. M.M. by

section 37 is broader than the defence under

section 34 . Accordingly, I will confine my analysis in this case within the ambit of

section 37 of the Criminal Code . Background [ 3 ] During the afternoon of May 30, 2011, M.M. and C.D.T. became engaged in an altercation during which each possessed a weapon. Mr. M.M. had a large machete and Mr. C.D.T. a large stick. The altercation ended when Mr. M.M. struck a severe blow to Mr. C.D.T.’s head using the stick that Mr. C.D.T. originally had in this fight. [ 4 ] At this trial, the Crown called one police witness and five civilian witnesses including the victim, Mr. C.D.T. Mr.

M.M. did not call any evidence. [ 5 ] The Crown called Corporal Scriver for the limited purpose of tendering into evidence the machete and stick used in the fight between Mr. M.M. and Mr. C.D.T. [ 6 ] The civilian witnesses all testified as to the day’s events leading up to the fight between Mr. M.M. and Mr. C.D.T. and as well described what they could recall of that fight. [ 7 ] The events leading up to the fight began around noon on May 30, 2011, when a group of teenagers gathered at the home of 19-

year-old B.J. The boys in the group were wrestling in Mr. B.J.’s backyard. One female teenager, 15-year-old C.G. was also at B.J.’s home for a while waiting for a friend to arrive. The boys in attendance were: (

a) B.J.; (

b) K.B.; (

c) The accused, M.M.; (

d) The complainant, C.D.T.; and (

e) S.T., B.J.’s brother. [ 8 ] The complainant, Mr. C.D.T., had a backpack at B.J.’s home. It is common knowledge that Mr. C.D.T. had marijuana bongs in that backpack. According to Mr. C.D.T., he also had some clothing and some money he recently received for his birthday in the backpack. [ 9 ] In a statement Mr. C.D.T. gave to the police after the fight with Mr. M.M., Mr. C.D.T. stated that everything he owned was in his backpack. [ 10 ] During the course of the afternoon wrestling match, K.B. left Mr. B.J.’s home. Some time after K.B. left, Mr. C.D.T. and Mr. B.J. decided they would smoke some marijuana, so Mr.

C.D.T. went to get his backpack and discovered it was missing. [ 11 ] Mr. C.D.T. and the others looked throughout the yard but were unable to locate the backpack. According to S.T., suspicion fell upon K.B. as the culprit who stole Mr. C.D.T.’s backpack as he had left the group earlier. In his evidence before me, Mr. S.T. stated that: (

a) C.D.T. was angry – all he had was in that backpack; (

b) The other boys tried to calm Mr. C.D.T. down; (

c) As K.B. was the only one who had left, Mr. C.D.T. thought Mr. K.B. took the backpack; (

d) Mr. C.D.T. left and said he was going to get Mr. K.B.; (

e) A short while later the boys left B.J.’s house and went walking around and saw Mr. C.D.T. who was then carrying a large stick; (

f) Mr. C.D.T. said to Mr. S.T. that if he saw Mr. K.B. he was going to kill him; (

g) Mr. S.T. told Mr. C.D.T. to calm down but Mr. C.D.T. left; and (

h) Mr. S.T. did not recall if anyone was with him during this encounter with Mr. C.D.T. He thought he was alone with Mr. C.D.T. [ 12 ] There is no evidence before me that M.M. was present during this exchange with Mr. S.T., or, if he was present, that he heard Mr. C.D.T. threaten to kill Mr. K.B. if Mr. C.D.T. found him. [ 13 ] B.J.’s evidence as to the events surrounding the discovery that the backpack was missing and the immediate aftermath was very similar to the evidence of his brother, S.T. Mr. B.J. said upon discovering the backpack was missing, the boys looked everywhere but could not find the backpack.

Mr. B.J. said that Mr. C.D.T. then left, but returned at approximately 1:00 p.m. Mr. B.J. said the boys talked to Mr. C.D.T. for a short while and then Mr. C.D.T. left to look for K.B. Mr. B.J. did not say that Mr. C.D.T. threatened to kill Mr. K.B. [ 14 ] After Mr. C.D.T. left the second time, K.B. returned to the group. He did not have Mr. C.D.T.’s backpack at that time. It turns out that in fact K.B. took the backpack because at some point after the events of May 30, 2011, Mr. K.B. returned the marijuana bongs. [ 15 ] After Mr.

C.D.T. left the group the second time, another young man, fourteen-year-old Z.E., joined the group. Mr. Z.E. said he met the group of boys at B.J.’s home. When he arrived at the home, K.B. had returned to the group. Mr. Z.E. testified that the group consisted of B.J., K.B., S.T. and M.M. [ 16 ] The group decided they would go to hang out at nearby Hawthorne Park which was a few minutes away. The group walked to the park and were sitting on and around a bike rack which was adjacent to a water park. The group assembled at Hawthorne Park were: (

a) B.J.; (

b) S.T.; (

c) K.B.; (

d) Z.E.; (

e) M.M.; and (

f) C.G. [ 17 ] The precise time when this group of teenagers arrived at Hawthorne Park is unclear, but it was clearly sometime after 1:00 p.m.

and before the evening. The following people testified as to what transpired next. I will summarize their evidence individually. C.G. [ 18 ] Ms. C.G. testified that the group was at the entrance to the park near the water park. Ms. C.G. was sitting at the bike rack; others in the group were standing around. [ 19 ] After about twenty minutes, C.D.T. emerged from a trail and was walking toward the group carrying a large stick. Mr. C.D.T. looked angry. Mr. C.D.T. said to the group, “Where is my stuff?” Ms. C.G. did not know to whom he was directing this comment. [ 20 ] Ms. C.G. stated that as Mr.

C.D.T. approached the group, M.M. walked forwards and put himself between Mr. C.D.T. and the group. Mr. M.M. began swinging a machete and Mr. C.D.T. was swinging his stick. Ms. C.G. could not recall how Mr. C.D.T. was swinging his stick. [ 21 ] Ms. C.G. stated that Mr. M.M. produced the machete from his pants. He was swinging the machete from side to side. The group of teenagers was yelling at Mr. M.M. to drop the machete. Ms. C.G.’s impression was that Mr. M.M. was on the defensive. She recalled Mr. C.D.T. striking Mr. M.M. once on the leg with his stick. Mr. M.M. did not strike Mr.

C.D.T. with the machete. [ 22 ] Ms. C.G. said she saw the machete and stick strike each other and the weapons fell to the ground. She then saw Mr. M.M. pick up the stick. Ms. C.G. then turned her attention away from the altercation to speak to Z.E. A few seconds later when Ms. C.G. turned her attention back to the altercation, C.D.T. was laying on the ground. She did not see what happened to cause Mr. C.D.T. to fall to the ground. [ 23 ] Ms. C.G. said she was in shock. People were yelling. B.J. began to chase after M.M. calling him an idiot. Mr. M.M. was saying to Mr. B.J., “Don’t hurt me.” Ms.

C.G. was picked up at Hawthorne Park by the mother of a friend of hers. S.T. [ 24 ] Mr. S.T. said the group was sitting and talking at the water park near the bike stand in Hawthorne Park. [ 25 ] He said he saw C.D.T. emerge from some trails walking towards the group. Mr. C.D.T. was carrying the stick Mr. S.T. had seen him with earlier in the day. He was using the stick like a walking stick. [ 26 ] Mr. S.T. said that Mr. C.D.T. looked mad; he was holding the stick in his hand. Mr. S.T. alerted the group that Mr. C.D.T. was approaching. [ 27 ] As C.D.T. approached the group, he accused K.B. of taking his backpack.

Mr. C.D.T. was acting aggressively. Mr. C.D.T. was approximately two feet away from K.B. Mr. K.B. said he did not take Mr. C.D.T.’s backpack. [ 28 ] At this point M.M. produced a machete. S.T. said that Mr. C.D.T. was now holding his stick like a baseball bat. Mr. S.T. was of the view that Mr. M.M. was sticking up for K.B. because Mr. M.M. had the machete as a weapon. [ 29 ] Mr. S.T. said he saw M.M. moving the machete to block Mr. C.D.T. from striking him with the stick. Mr. M.M. was not swinging the machete to try and strike Mr. C.D.T. Mr. S.T. saw Mr. C.D.T. swing the stick at Mr. M.M. He did not see Mr.

C.D.T. actually strike Mr. M.M. with the stick. [ 30 ] Mr. S.T. then said he saw M.M. drop the machete. C.D.T. then dropped his stick. Both boys were standing on the road. S.T. said that less than a minute later Mr. M.M. picked up the stick and held it with two hands and swung the stick striking Mr. C.D.T. on the left side of his head. Mr. S.T. saw Mr. C.D.T. drop to the ground and saw blood coming out of the side of his head. [ 31 ] Mr. S.T. estimated that the entire incident, from when C.D.T. emerged from the trail, until M.M. struck Mr.

C.D.T. and he fell to the ground, lasted a little more than five minutes. [ 32 ] During cross-examination, S.T. was shown a few excerpts from two statements he gave to the police following this incident. Neither the statements nor the excerpts were entered into evidence, although Mr. S.T. read out portions of those statements that were put before him. In his evidence before me, he confirmed that he did not see Mr. C.D.T. strike Mr. M.M. in the leg with the stick; he said he heard that happened from others. [ 33 ] Mr. S.T. also said that he did not remember Mr. M.M. grabbing the stick from Mr. C.D.T.’s hands.

However, in his second statement to the police, he told the police that Mr. M.M. grabbed the stick out of Mr. C.D.T.’s hand. [ 34 ] Accordingly there is a conflict in Mr. S.T.’s evidence on this point. In his direct examination, S.T. said he recalled Mr. M.M. dropped the machete and then Mr. C.D.T. dropped his stick. He repeated that evidence a few times in his examination in chief. He said that about a minute after Mr. C.D.T. dropped the stick M.M. picked up the stick and struck Mr. C.D.T. in the head. [ 35 ] At first during cross-examination, Mr. S.T. confirmed that Mr. M.M. dropped the machete followed by Mr.

C.D.T. dropping the stick, and then less than a minute later Mr. M.M. picked up the stick from the ground. When pressed in cross-examination concerning his statements to the police, he acknowledged that he told the police that Mr. M.M. grabbed the stick out of Mr. C.D.T.’s hand. However, he also said that he did not recall Mr. M.M. grabbing the stick from Mr. C.D.T. Finally, S.T. said he could not recall if Mr. M.M. grabbed the stick off the ground or out of Mr. C.D.T.’s hands. B.J. [ 36 ] Mr. B.J. stated that Hawthorne Park is approximately a two-minute walk from his home.

He walked with the group to the park where they were hanging out by a large box that had the controls for the water park. He said the group was there for ten to fifteen

minutes when C.D.T. emerged from the bushes and came walking up the hill towards the group carrying a long stick in his hands. [ 37 ] Mr. B.J. said that Mr. C.D.T. walked right up to the group asking K.B. where his backpack was. Mr. C.D.T. appeared to Mr. B.J. to be calm but angry. [ 38 ] Mr. B.J. said that Mr. C.D.T. tried to swing his stick at K.B. who was sitting on the bike rack. Mr. M.M. was sitting next to Mr. K.B. and stood in front of K.B. and received a blow to his left side – on his arm or his leg. M.M. then told Mr. C.D.T. to leave K.B. alone. Mr. C.D.T. swung the stick a second time and struck Mr.

M.M. again. [ 39 ] At that point Mr. B.J. said that M.M. pulled out a machete the boys had purchased earlier that day which they had been using to clear trails in Hawthorne Park. [ 40 ] Mr. M.M. was now wielding the machete and Mr. C.D.T. had the stick. They were exchanging words, but Mr. B.J. does not recall what they were saying. [ 41 ] Within a minute or two of pulling out the machete, Mr. M.M. dropped the weapon. Mr. M.M. had not been swinging the machete at C.D.T. According to B.J., M.M. dropped the machete on the ground out of reach. After Mr. M.M. dropped the machete, Mr. C.D.T. dropped the stick. Mr.

B.J. recalled telling Mr. C.D.T. to drop the stick after Mr. M.M. dropped the machete because no-one else had a weapon. [ 42 ] Mr. B.J. observed C.D.T. moving away towards the driveway and he dropped the stick on the pavement. Mr. B.J. observed Mr. M.M. move towards Mr. C.D.T. He then observed M.M. pick up the stick and saw C.D.T. move towards Mr. M.M. B.J. did not observe C.D.T. moving his arms or saying anything. Mr. B.J. then saw Mr. M.M. swing the stick and strike Mr. C.D.T. once on the side of the head. Mr. C.D.T. made a funny noise, fell to the ground, and started bleeding from his ear. [ 43 ] Mr.

B.J. said he was angry with Mr. M.M. and chased him from the park. [ 44 ] As with S.T., Mr. B.J. gave a statement to the police following this incident. Portions of his statement were put to him in cross- examination. He testified that based upon his recollection at the start of this altercation, he believed Mr. C.D.T. struck Mr. M.M. on the leg or the arm. He said he did not know if Mr. M.M. was struck in the head. He said his statement to the police should say that Mr. M.M. was struck in the “arm or head.” [ 45 ] Mr. B.J. said that he believed Mr.

C.D.T. dropped the stick although he stated it was possible that Mr. M.M. might have grabbed the stick from Mr. C.D.T. Z.E. [ 46 ] Z.E. testified that he was standing with the group of teenagers at the bike rack near the main entrance to Hawthorne Park when he saw C.D.T. approaching the group. He said Mr. C.D.T. was carrying a stick in his hands and he asked the group where his backpack was. Mr. Z.E. did not recall if anyone responded to Mr. C.D.T. [ 47 ] Mr. Z.E. stated that Mr. C.D.T. was upset, “pissed off.” Mr. C.D.T. arrived at the curb where the group was and started swinging his stick. Mr.

M.M. got up and was struck by Mr. C.D.T.’s stick. Mr. Z.E. felt that Mr. C.D.T. was swinging the stick at K.B. Mr. Z.E. said that Mr. M.M. was protecting Mr. K.B. He said that M.M. was struck, “in the leg or something.” He said that Mr. M.M. was struck a second time and then he produced a machete from his pants. [ 48 ] Mr. Z.E. said that Mr. M.M. raised the machete and Mr. C.D.T. backed up a bit. By this point the boys were on the pavement adjacent to where the rest of the group was standing. Mr. Z.E. observed Mr. C.D.T. back up and Mr. M.M. stepped forward. Mr. C.D.T. was swinging his stick back and forth.

Z.E. then saw Mr. M.M. throw the machete behind him, he said Mr. M.M. swung the machete behind him onto the ground. Mr. Z.E. did not think the combatants were saying anything to each other. [ 49 ] After Mr. M.M. threw down his weapon, Mr. Z.E. said M.M. struck C.D.T. in the head with the stick. Mr. Z.E. did not see how Mr. M.M. came into possession of the stick as Mr. Z.E. was not watching the entire exchange. [ 50 ] Mr. Z.E. saw M.M. strike Mr. C.D.T. in the head with the stick and watched Mr. C.D.T. walk to the grass, fall over, and start screaming. [ 51 ] Mr. Z.E. then walked over to Mr.

C.D.T., and B.J. started chasing M.M. Mr. Z.E. walked Mr. C.D.T. back to Mr. B.J.’s home and B.J. called for an ambulance. [ 52 ] In cross-examination, Mr. Z.E. confirmed his evidence in chief to the effect that he was not sure how Mr. M.M. obtained the stick, or how it was Mr. C.D.T. lost possession of his weapon. He said he thought Mr. C.D.T. accidentally dropped the stick. [ 53 ] Further in cross-examination, Mr. Z.E. said that when Mr. M.M. struck Mr. C.D.T. in the head, Mr. C.D.T. was walking towards Mr. M.M. and was yelling.

C.D.T. [ 54 ] C.D.T., who was referred to throughout this trial as “D.”, has a limited recollection of the events of May 30, 2011. He recalled wrestling with B.J. in Mr. B.J.’s back yard and discovering that his backpack was missing. He testified that he thought K.B. had taken the backpack, and that he was “a little angry.” [ 55 ] He recalled having a stick he found in the bushes of the park and remembered a little bit of the fight with M.M. He said he recalled Mr. M.M. had a machete and Mr. C.D.T. had the stick. He remembered striking Mr. M.M. in the arm to try and dislodge the machete.

[ 56 ] He did not recall how the fight started, but said he was not angry with Mr. M.M. Mr. C.D.T. said that Mr. M.M. was threatening him and swinging the machete in the air. [ 57 ] Mr. C.D.T. was unsure if Mr. M.M. dropped the machete or threw it down, but he recalled Mr. M.M. no longer had a weapon so Mr. C.D.T. dropped his stick. Mr. C.D.T. said he did not want to hit a defenceless person. [ 58 ] He said he then recalled Mr. M.M. holding the stick with both hands in front of himself. Mr. C.D.T. did not recall how Mr. M.M. got possession of the stick. [ 59 ] C.D.T. did not recall Mr.

M.M. striking him in the head. He recalled being dragged back to B.J.’s home and waking up in the hospital. He thought he was unconscious for eight days and was in hospital for eleven days. [ 60 ] Under cross-examination, Mr. C.D.T. stated he recalled being interviewed by a police officer a few weeks after he was released from the hospital. In that police interview, Mr. C.D.T. told the police that Mr. M.M. stole his backpack; however, in his evidence before me he said he was not really sure who stole his backpack, but that Mr. M.M. was still with the group at Mr. B.J.’s home when Mr.

C.D.T. discovered his backpack was missing. He stated that he was still a little groggy at the time the police officer took the statement, and that the statement to the police officer is a little different than what he now recalls of the events of May 30, 2011. [ 61 ] Further in cross-examination, Mr. C.D.T. recalled arguing with M.M. during their altercation, that Mr. M.M. produced a machete and that Mr. C.D.T. swung his stick to strike Mr. M.M.’s arm in an effort to dislodge the machete. When pressed, Mr. C.D.T. said there were only three things he was one hundred percent sure of and they were: 1.

Wrestling in B.J.’s backyard; 2. Discovering his backpack was missing; and 3. Himself holding a stick and Mr. M.M. holding a machete. [ 62 ] Mr. C.D.T. recalled that at one point Mr. M.M. no longer had the machete and then Mr. C.D.T. dropped his stick. He recalled throwing down the stick. Once the stick was on the ground, C.D.T. said that it was definitely possible that if he saw Mr.

M.M. going for the stick that he would probably attempt to grab the stick; although he had no recollection of doing so. [ 63 ] As for waving his arms and fists, again he had no recollection of doing so, but felt that if he was doing so it was in a defensive manner to ward off strikes by M.M. wielding the stick. In support of this theory, Mr. C.D.T. noted one of his arms was bruised when he woke up. Mr. C.D.T. was unable to estimate how long this incident at Hawthorne Park lasted, but he guessed that the fight with Mr. M.M. likely lasted a few seconds. Mr. C.D.T. accepted that Mr.

M.M. picked up the stick and struck him very quickly. Discussion [ 64 ] It is not surprising that there are some differences in the recollection of each of these individuals as to what occurred at Hawthorne Park on the afternoon of May 30, 2011. It was both emotional, and shockingly violent in the end. However, I am satisfied that the Crown has established the following beyond a reasonable doubt: (

a) The group of boys, absent Z.E., started their afternoon at B.J’s home where they were wrestling in the backyard; (

b) K.B. left Mr. B.J.’s home before any of the other teenagers; (

c) C.D.T. went to look for his backpack, discovered it was missing, and was angry; (

d) C.D.T. suspected K.B. of taking his backpack and went looking for K.B.; (

e) C.D.T. found a large stick while looking for K.B. and was carrying the stick with him; (

f) The group, minus C.D.T., assembled at Hawthorne Park during the afternoon of May 30, 2011; (

g) After the group had been at Hawthorne Park for fifteen or twenty minutes, C.D.T. arrived and walked towards the group with his stick. C.D.T. was angry; (

h) C.D.T. asked the group where his backpack was, but the question was directed towards K.B.; (

i) When K.B. did not tell C.D.T. where the backpack was, C.D.T. raised his stick intending to swing it at K.B. (

j) M.M. stepped in front of K.B. and when C.D.T. swung the stick, it struck M.M. in the arm. That blow was not intended for M.M., but M.M. deliberately put himself in the line of fire resulting in him being hit; (

k) M.M. then produced the machete from his pants and wielded the weapon in the air; (

l) M.M. was struck a second time, either just before or just after he wielded the machete, and then he disposed of his weapon, dropping it behind himself; (

m) C.D.T. dropped his stick after seeing that M.M. had dropped the machete; (

n) The stick was on the ground by the two combatants and M.M. picked the stick up off the ground, held it with two hands and swung it at C.D.T., striking C.D.T. on the left side of his head.

(

o) At the time that C.D.T. dropped the stick, the confrontation between these two boys was not yet over; (

p) At the time that M.M. swung the stick at C.D.T., C.D.T. took a step towards M.M.; and (

q) C.D.T. sustained very serious head injuries as a result of M.M.’s assault. [ 65 ] As I indicated at the outset of these reasons, the only issue I must decide is whether the Crown has disproven, beyond a reasonable doubt, the defence of self-defence under

section 37 of the Criminal Code . In R. v. Grandin , the B.C. Court of Appeal approved of the trial judge’s charge to the jury on the application of

section 37 in the following terms: So, what are the essential elements of the defence that the Crown, again, must disprove. There are three, and to rely on

Section 37 , all three ingredients must exist, or to put it conversely, the Crown succeeds in negating the defence if it proves beyond a reasonable doubt that any one of the three elements is missing. So the three essential ingredients in self-defence are, first of all, that the accused used force. Secondly, that the force used was to defend himself from assault, which means not only physical contact, but the attempt or threat of physical contact or application of force.

Thirdly, that the force used was no more than necessary to prevent the assault or repetition of it. [ 66 ] Applying that analysis to the facts of this case, I come to the following conclusions: 1. M.M. clearly used force – there is no dispute on this point; 2. For reasons I will explain in a moment, the force was not used to defend himself from an assault, it was

an act of aggression; 3. Again, for reasons I will explain in a moment, I am satisfied that the Crown has proven, beyond a reasonable doubt, that the force used by Mr. M.M. was more than necessary to prevent the assault or repetition of it. [ 67 ] At the conclusion of their decision in R. v. Grandin , the Court of Appeal sets out the Jury Questions to be considered in a case where an accused invokes the self-defence provision in

Section 37 of the Criminal Code . Those questions and my answers with respect to the evidence in this case are as follows: 1. Has the Crown proven each of the following elements beyond a reasonable doubt: (

a) The identity of the accused named in the indictment? Yes (

b) The time and place of the offence? Yes (

c) That the accused applied force directly or indirectly to the individual named in the indictment? Yes (

d) That the accused intended to apply the force to that individual? Yes (

e) That the individual did not consent to the application of force by the accused? Yes (

f) That the accused knew the individual did not consent? Yes (

g) That the assault wounded, maimed, disfigured or endangered the life of that individual? Yes (

h) That a reasonable person would inevitably have realized that the application of that force would subject the individual to the risk of bodily harm? Yes 2. If the answer to any of the questions 1(

a) through (

h) is No, you must find the accused not guilty of aggravated assault. 3. If the answer to each of questions 1(

a) through (

h) is Yes, has the Crown proved beyond a reasonable doubt that: (

a) The individual (C.D.T.) did not assault the accused? No; or (

b) That the force applied by the accused to the individual was excessive, having regard for the nature of the assault it was intended to prevent? Yes 4. If the answer to questions 1(

a) through (

h) is Yes, and the answer to either [question] 3(

a) or (

b) is Yes, you must find the accused guilty of aggravated assault. [ 68 ] Accordingly, in this case I must find the accused, M.M., guilty of the aggravated assault of C.D.T. [ 69 ] On the evidence before me, I find that in the very early stages of this confrontation between Mr. M.M. and Mr. C.D.T., Mr. M.M. was struck by Mr. C.D.T. twice. Mr. M.M. then brandished his machete. However, shortly after brandishing his weapon, M.M. voluntarily disarmed himself of his weapon. He then dropped or swung his machete out of reach. I am cognizant of Ms.

C.G.’s evidence that the weapons dropped when they struck each other, but I find she is mistaken. All other witnesses who testified stated clearly that Mr. M.M. dropped or swung his machete behind himself and some noted the machete was out of his reach. [ 70 ] I am satisfied that the Crown has established beyond a reasonable doubt that Mr. M.M. voluntarily disarmed himself under circumstances where he had been struck twice by Mr. C.D.T. and Mr. C.D.T. was still wielding his weapon. In other words, Mr. M.M. chose to dispose of his weapon in this fight in which Mr. C.D.T. remained armed. [ 71 ] After Mr.

M.M. disarmed himself he saw Mr. C.D.T. drop the stick. I conclude that at that point, Mr. M.M. clearly did not need a weapon because Mr. C.D.T. posed even less of a threat than he had only seconds earlier when he was wielding his stick and Mr. M.M.

had no weapon. [ 72 ] I conclude further that when Mr. M.M. picked up the stick from the ground he did so not to defend himself but to gain the upper hand in this altercation. I heard evidence that suggested either that Mr. M.M. grabbed the stick from Mr. C.D.T. or that he took the stick away from Mr. C.D.T. when the stick was on the ground. I am satisfied that the Crown has proven beyond a reasonable doubt that Mr. C.D.T. dropped the stick to the ground. All witnesses except Mr. Z.E. testified that they saw the stick drop to the ground. [ 73 ] As I have already indicated, Mr.

M.M. did not need a weapon to defend himself against Mr. C.D.T. He demonstrated that by dropping his machete. So the act of grabbing the stick was either to deprive Mr. C.D.T. of the stick or to gain an advantage in this fight. What is clear to me is that once Mr. M.M. had the stick, he did not need that weapon to protect himself against Mr. C.D.T. It follows that when he swung the stick at Mr. C.D.T., he did so in

an act of aggression rather than to defend himself against Mr. C.D.T. [ 74 ] Further, while I understand that I cannot measure with nicety the force used by Mr. M.M. in the heat of the moment, I find it was clearly an excessive use of force to swing the stick at Mr. C.D.T.’s head. He did not need the stick to begin with, so to swing it at all was unnecessary and to swing it at Mr. C.D.T.’s head was excessive. [ 75 ] I note that counsel for Mr. M.M. pointed out in his closing submissions that Mr. M.M. ran after only striking one blow to Mr. C.D.T. and that I can therefore infer that Mr.

M.M. did not intend the consequences of his assault on Mr. C.D.T. I am of the view that first, there was evidence from at least two witnesses that after Mr. M.M. struck Mr. C.D.T., B.J. began to chase Mr. M.M. as Mr. B.J. was angry with Mr. M.M. for striking Mr. C.D.T. That evidence explains Mr. M.M. running from the scene. Second, I do not read the law to require me to determine what Mr. M.M.’s intentions were. Rather, I must determine if the force used by Mr. M.M. was excessive in all the circumstances.

I have done so. [ 76 ] Accordingly, I find M.M. guilty of the aggravated assault of C.D.T. on May 30, 2011. ____________________________________ The Honourable Judge R. N. Hamilton Provincial Court of British Columbia