R. v. Roline, 2018 ONCJ 414

CITATION: R. v. Roline , 2018 ONCJ 414 DATE: January 23, 2018 Information No. 16-15006853 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. SHALONE ROLINE REASONS FOR JUDGMENT BEFORE THE HONOURABLE JUSTICE RONDINELLI on January 23, 2018 at TORONTO, Ontario. ********** APPEARANCES : M. Atkin Counsel for the Crown C. Szpulak Counsel for Shalone Roline

TUESDAY JANUARY 23, 2018 MS. ATKIN: Good morning, Your Honour. THE COURT: Good morning. MS. ATKIN: Ms. Atkin, initial M for the Provincial Crown. I'm here on the Shalone Roline matter which as you know is set forjudgment today at 9:30. As I'm sure Your Honour's aware, there was some mix-up. Apparently the information was not marked for9:30. I understand it's on its way to the court now and that Counsel's content to proceed without it. I would also just remind the Court,I'm due in another courtroom at 10 a.m. so in the event that judgment runs over, I do have one of our students here Ms.

Carolina[indiscernible] and she'll step in for me to continue a judgment or my colleague Ms. Silver who's here on the Green matter which is setfor trial today should be arriving just before 10 as well. THE COURT: Okay. MS. ATKIN: Thanks, Your Honour. THE COURT: We should be okay. MS. SZPULAK: Good morning, Your Honour. THE COURT: Good morning. MS. SZPULAK: For the record, Szpulak, S-Z-P-U-L-A-K, first initial C, counsel appearing for Ms. Roline today. I also have anothermatter that I must speak to a 10 so. THE COURT: Okay, it's all good. I see that I have prepared an oral judgment. I'll just read it.

R E A S O N S F O R J U D G M E N T RONDINELLI J. (Orally): What started off as a group of friends going out to a bar to celebrate a birthday ended up with Mr. Gingras suffering an injury to his headand Ms. Roline facing criminal charges. What is also unfortunate is that an unnecessary rude comment seems to be the root cause of thematter. Mr. Gingras and Ms. Roline did not know each other prior to that evening, but their introduction was memorable. While they both wereat the bar getting drinks, Mr. Gingras came into contact with Ms. Roline's designer purse which led to some choice words between thetwo.

The exchange culminated with Mr. Gingras exclaiming, "Bye, Felicia" which was directed at Ms. Roline. The term, "Bye Felicia" is a popular cultural reference which both parties agreed has negative connotations associated with it. It cannotbe viewed as anything less than rude and dismissive. It was this insult that triggered the events of the evening. There is no dispute that later that evening Ms. Roline hit Mr. Gingras on the back of his head with a drinking glass and caused himbodily harm. The question to be determined is whether Ms. Roline was acting in self-defence. The Crown's position is that Ms.

Roline was not acting in self-defence but rather in anger because she felt disrespected by Mr. Gingras. The Crown called the complainant and his two friends that were with him that evening at the bar. The evidence of these Crownwitnesses provided no support for Ms. Roline's contention that she acted in self-defence. They all testified that the complainant was inthe process of leaving the bar and Mr. Gingras had his back to Ms. Roline when he was struck on the back of his head.

However, in determining whether an air of reality exists to the self-defence claim, the Court must consider the totality of the evidenceand assume the evidence relied on by the accused to be true. (See R. v. Phillips 2017 ONCA 752 , [2017] O.J. No. 5022 C.A.) The question for a trial judge is whether the evidence discloses a real issue to be decided by the trier of fact and not how the trier of fact

should ultimately decide the issue. In my view, Ms. Roline's testimony provided an evidentiary basis for the defence of self-defence to be considered in this case. This means that the Crown has the burden to prove beyond a reasonable doubt that self-defence under S. 34 of the Criminal Code is not available to Ms. Roline and the Crown can do this by proving beyond a reasonable doubt that one or more of the pre-conditions set out in S. 34 do not apply. S. 34(1) of the Criminal Code states; 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 made against 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 that use or threat of force; and

c) the act committed is reasonable in the circumstances. S. 34(2) goes on to state; In determining whether the act committed is reasonable in the circumstances the Court shall consider the relevant circumstances of the person, the other parties in the act, including but not limited to the following factors;

a) the nature of the force or threat;

b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;

c) the person's role in the incident;

d) whether any party to the incident used or threatened to use a weapon;

e) the size, age, gender and physical capabilities of the parties to the incident;

f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat; f.1) any history of interaction or communication between the parties to the incident;

g) the nature and proportionality of the person's response to the use of threat of force; and

h) whether the act committed was in response to use or threat of force that the person

knew was lawful. Just turning to the first factor, were there reasonable grounds to believe force was being used? In assessing whether Ms. Roline had reasonable grounds to believe that Mr. Gingras was threatening to use force against her when she in turn struck Mr. Gingras with the glass, I have considered Ms. Roline's evidence that she suffers from anxiety and has suffered through some abusive relationships with men in the past. This evidence was uncontradicted as the Crown did not cross-examine Ms. Roline with respect to these issues. Ms. Roline's initial contact with Mr.

Gingras ended in a rude and dismissive comment. She had told Mr. Gingras' friend to keep him away from her, yet minutes after that first interaction Mr. Gingras was walking towards her. She thought she had extricated herself from the situation, but a complete stranger was now approaching her with his hands up and whether it be giving her the middle finger that she testified, or giving the peace sign as Mr. Gingras testified, Ms. Roline testified she did not know what to expect at this point and her anxiety kicked in. On this evidence, I am at the very least left with a reasonable doubt as to whether Ms.

Roline had reasonable grounds to believe that Mr. Gingras was threatening to use force against her. The second factor: did Ms. Roline strike Mr. Gingras with a glass for the purpose of defending herself? The Crown argued that Ms. Roline was not acting with a protective purpose, but out of anger due to the earlier insult and the continuing taunting on the part of Mr. Gingras. The fact that Ms. Roline felt insulted by Mr. Gingras does not preclude a finding that she also felt threatened. They are not mutually exclusive concepts. Although Ms.

Roline testified that she felt disrespected, she further testified that she felt afraid, again, stemming from her anxiety and previous experience of being physically abused by men and reflexively reacted by grabbing the first thing she could find and striking Mr. Gingras a single time in order to alleviate the perceived threat. When all of the relevant circumstances are taken into consideration in the context of Ms. Roline's characteristics and background, I am again left with reasonable doubt as to whether Ms. Roline was acting for the purpose of protecting herself when she struck Mr. Gingras with the glass.

Turning to the third factor: was the strike to the head with the glass reasonable in the circumstances? In assessing the objective reasonableness of Ms. Roline's actions, I am required to consider the factors set out in S. 34(2) (

a) to (

h) of the Criminal Code that I had referred to earlier. I note that these factors are not exhaustive and I could consider any other relevant circumstances. I have taken into account that Mr. Gingras was a stranger to Ms. Roline and she had no idea what his background or propensity for violence could be. She would undoubtedly have difficulty gauging the risk posed by Mr. Gingras. In my view, however, even on her own evidence alone, it is clear to me that Ms. Roline misapprehended the situation and her misapprehension was not reasonable. I say this for a number of reasons. 1 . Mr.

Gingras was not armed with any weapon; 2 . Although Mr. Gingras is a bit taller than Ms. Roline, he is by no means a man of imposing presence;

3 . According to Ms. Roline, no threatening words were used at the first encounter at the bar, nor upon his approach to her at the table other than "Fuck you. Fuck you bitch"; 4 . She wasn't alone with Mr. Gingras. The encounter occurred in a bar with other patrons and security around; 5 . According to Ms. Roline, Mr. Gingras had to nudge around his friends to get his hand close to her face indicating there was no clear path to her, especially with a table separating them; 6 . Ms. Roline was not prevented from moving away from Mr. Gingras or leaving the table as Mr. Gingras approached; and 7 . Ms.

Roline was informed by Andre that the men were going to leave the bar and that would thereby put an end to any further interaction between the two. In the end, Ms. Roline was faced with a disrespectful comment at the bar, some further taunting at the table and a hand that came close to her face. In my view, her response to the force that objectively she did face was grossly disproportionate. It was unreasonable. As such, I have concluded that the Crown has proven beyond a reasonable doubt that the force used by Ms. Roline was not reasonable in all the circumstances, therefore Ms.

Roline was not acting in lawful self-defence and is found guilty of both counts. MS. ATKIN: So, Your Honour I would ask that a conviction be entered on the assault bodily harm, given the Kienapple principle. THE COURT: So assault causing bodily harm conviction... MS. ATKIN: Yes. THE COURT: ...conviction to be entered and assault with a weapon to be stayed... MS. ATKIN: That's correct. THE COURT: ...pursuant to Kienapple ? MS. ATKIN: Thank you. THE COURT: Okay. And in terms of sentencing? MS. ATKIN: So, Your Honour, I believe counsel and I spoke about this on the last date.

We're going to ask that this be put over for sentencing. I expect that the victim will provide some input to the Court. He may wish to do that in person for the purposes of sentencing. So, perhaps we can just speak about dates? THE COURT: So, you'll have to canvas that with the trial coordinator again. MS. ATKIN: Okay. So, perhaps I will - I will just send - send my availability to my colleague or to my friend. I'll give her my availability and then if she could speak to it on my behalf, I'm content with that. THE COURT: I guess we have about 10 minutes to do that, if she wanted to see.... MS.

ATKIN: Yes, I'll - I'll go do that now, but sometimes there's a big line up at the trial coordinator.

THE COURT: I understand. MS. ATKIN: In which case I will discuss the date with my friend and then perhaps she could speak to it on my behalf if you're content with that. MS. SZPULAK: Sure, I can do that. THE COURT: All right. MS. ATKIN: Thanks, Your Honour. THE COURT: Madam Clerk maybe we'll do that then. We'll let them go to trial coordinator. So, I'll come back with - when you call. R E C E S S U P O N R E S U M I N G: MS. SZPULAK: Good morning again, Your Honour. My friend and I canvassed the trial coordinator and we have picked a date for sentencing.

It's February 23 rd , 2018 in courtroom 112 to be traversed at 10 a.m. And we set it for an hour, just in case. THE COURT: Okay. All right then so Mr. Roline your matter will return for sentencing on February 23 rd .... MS. SZPULAK: Twenty-seventh. Sorry 27. THE COURT: Twenty-seventh? MS. SZPULAK: Yes. THE COURT: February 27 th , 2018 Courtroom 112 at 10 a.m. to be traversed to wherever I'm sitting that morning. MS. SZPULAK: Thank you very much, Your Honour. THE COURT: Thank you. ...MATTER CONCLUDED