R v Kirton, 2023 MBPC 45

CITATION: R v Kirton , 2023 MBPC 45 THE PROVINCIAL COURT OF MANITOBA Winnipeg Centre BETWEEN His Majesty the King ) ) K. Berkis for the Crown - and - ) ) ) Michael William Kirton Accused ) ) S. Newman for the Accused ) ) ) ) Judgment delivered: October 3, 2023 C.A. DEVINE, P.J. [ 1 ] This is a tragic case. Cleavon Day suffered from multiple facial fractures requiring surgery. Michael Kirton is facing an aggravated assault charge for those injuries. Both men are Indigenous. Both live on the margins of society. Mr.

Day had been living on the streets for about 30 years and had severe alcohol problems for about 30 years up to the time of this event, and would also use methamphetamine and other drugs. He had previously suffered injuries such as a broken nose, never repaired, as a result of falling on his face while intoxicated. Mr. Kirton used methamphetamine for some time preceding and since this event. He suffers from severe schizophrenia. He is unhoused. He supports himself by panhandling at a 7-Eleven store, which is where the relevant event took place. [ 2 ] Mr.

Kirton is claiming self-defence, since it is uncontested that Mr. Day came at him, fists up and initiated a fight. The Crown argues that his response to Mr. Day was not reasonable and takes it out of the realm of self-defence. [ 3 ] There is video surveillance. THE ASSAULT [ 4 ] Video surveillance showing a crime in progress should unequivocally demonstrate what happened, but that is not always the case. The interaction took place in early evening but daylight hours because it was early September. Surveillance video from the 7- Eleven store shows one angle of that interaction.

I have watched the video many times and what should be definitive is capable of more than one

interpretation. [ 5 ] The entire interaction at that time between Mr. Day and Mr. Kirton took two minutes. The actual assaultive interaction was seven seconds. Mr. Day made a bee-line directly to Mr. Kirton from across the street, threw down his sweater and raised his fists at Mr. Kirton. Mr. Kirton took four or five steps back with Mr. Day advancing on him. [ 6 ] Mr. Kirton kneed Mr. Day in the midsection and then punched him forcefully in what appears to be his face. It appears forcefully, from Mr. Kirton’s stance. Mr. Day was bent over. Then it appears that Mr.

Kirton kneed him in the buttocks which resulted in Mr. Day’s face or head hitting the curb. The curb is a concrete pad raised approximately six inches higher than the concrete parking lot, forming the entranceway to the store. I infer that Mr. Day’s head hit this curb, because once he went down only his head was on the concrete pad and the rest of his body was on the concrete parking lot. It appears that both men’s legs were a bit tangled up and Mr. Kirton raised his right foot and brought it down to the parking lot on the right side of Mr. Day’s face or his shoulder. In cross- examination, Mr.

Day agreed he had told police that night that he was trying to grab Mr. Kirton’s legs and wrestle him to the ground. Similarly, he told police in his statement that he was trying to put Mr. Kirton down and wrestle him down. I am not satisfied beyond a reasonable doubt, in looking at the video many, many times, that Mr. Kirton stomped onto Mr. Day’s face either intentionally or unintentionally, because it is not clear from the video. [ 7 ] The Crown described it as a curb stomping because Mr. Day’s head was on the concrete pad and his body was on the parking lot and presumably because of the injuries. [ 8 ] Mr.

Day was on his back then and raised his right hand in what appears to be a protective position.

[ 9 ] Mr. Kirton then either stepped over his face onto the curb, or stepped onto his face, bringing himself onto the curb. [ 10 ] I am not satisfied that this contact with Mr. Day’s body was a stomp. At best it was a step. [ 11 ] There is no question Mr. Day was very badly injured. After that, he appears to be writhing in pain and is initially unable to turn himself over to either stand or sit up. [ 12 ] Mr.

Day was trying to sit up and had his back towards the store. [ 13 ] A couple walking through the parking lot who appeared to have witnessed the entire event stopped and stared. [ 14 ] A woman with a baby carriage at that point came into view and appeared to be yelling towards the store, presumably for help. [ 15 ] Mr. Kirton gave Mr. Day a shove with his foot, then grabbed him and shoved him, facing the concrete parking lot, away from the store. Mr. Day fell forward onto the ground. He was facing the ground, but it was not clear if his face hit the ground. [ 16 ] Although I cannot ascertain with precision how Mr.

Day’s injuries occurred, I infer that at least some of the injuries occurred during that interaction. [ 17 ] In a couple of minutes, a large delivery truck arrived and was backing directly into Mr. Day’s path. Mr. Kirton grabbed the back of Mr. Day’s shirt and dragged him out of the way of the reversing truck. [ 18 ] Shortly after that, Mr. Day managed to get up and walk away. Police came upon him about 20 minutes later in the area. [ 19 ] Mr. Kirton left and went home to sleep but returned to the 7-Eleven to do some more panhandling to get some food. The police came and he identified himself to them.

He was arrested. EVIDENCE OF THE PARTIES [ 20 ] Unfortunately, the only non-involved eye-witnesses to this offence did not testify. I do not know if they ever gave statements to the police. What they would have seen and heard would have been helpful to supplement and augment the video. Police officers who found Mr. Day 20 minutes later and took him to hospital, and those who had arrested and interviewed Mr. Kirton, had limited relevant information about the actual assault. Both Mr. Day and Mr. Kirton testified, but their evidence had many shortfalls and in the end, is of some, but limited and careful use. Mr.

Day, a chronic alcoholic for most of his life, has suffered memory loss. He did however demonstrate considerable animus and aggression towards Mr. Kirton in court. [ 21 ] Mr. Day testified he could not remember what really happened to him. He testified that he saw Mr. Kirton twice that day, once after the bar closed. We know from the other evidence in the trial that both occasions were daylight hours. He testified that he just remembered Mr. Kirton being upset about something, “bitching at me” and then getting kicked in the face when he was sitting down. We know from the video that this is not what occurred.

He testified that he was drunk and had alcohol with him in his backpack. We know from the hospital records which were filed as exhibits that he did not have elevated blood alcohol levels and we know from the video that he did not have a backpack with him. [ 22 ] Of note, he testified that he could not remember much of that morning and that he had injuries prior to seeing Mr. Kirton in the morning. He testified that living on the streets involved a lot of violence and that he had been “jumped” other times when he had alcohol in his possession, and that he had witnessed a murder at that 7-Eleven.

So, whatever memory issues he might have appear to be unrelated to the later assault by Mr. Kirton. He expressed a lot of anger and threatening language towards Mr. Kirton during his testimony, including saying that Mr. Kirton knows he can hurt him and he knows where to find him. [ 23 ] Mr. Day’s statement to the police and testimony are consistent that he was kicked and injured at night, after the bars closed. He also provided significant detail about having four bottles of Growers that night – he had drunk two and had two in his backpack. [ 24 ] Mr.

Kirton was experiencing significant delusions during his testimony, as the day continued. Despite the professional assistance and accommodation from Crown and Defence, and his community support worker, Mr. Kirton had a very, very difficult time staying focussed on what was actually going on in the courtroom and multiple times during cross-examination answered that he was just going to agree with everything the Crown suggested. I give any of his admissions on cross-examination no weight. The vulnerability of Mr.

Kirton as a witness is not unlike that of the vulnerable child witness, whose cross-examination was given little weight, because she was tired, unfamiliar with the court process and wanted to simply get it over with, in R v Borkowsky , 2008 MBCA 2 . For example, Mr. Kirton agreed with the Crown that he fled the scene to avoid police. But, in fact, he returned to the 7-Eleven that evening, where all the staff know him and give him coffee everyday, and calmly identified himself to the police when they came looking for him.

When he was given an opportunity to provide an answer other than yes or no on cross-examination, his evidence was more dependable. For example, when he was asked what he was saying to a 7-Eleven staff person on the video, he answered that he told them, “Well, I told them, ‘Let this guy do whatever, I’m leaving. That’s Mr. Day. He keeps coming back here to fight me.’” And when he was asked by the Crown what he said to Mr. Day when he was bending over him, he testified that he said, “I told him to back off.” [ 25 ] What does emerge from the evidence is that Mr.

Day was aggressive with him previously, bullying him for cigarettes and it was “nonstop”. Earlier that day at the 7-Eleven, before he got a chance to panhandle for some food money, Mr. Day came at him and wanted to fight. Mr. Day took the first swing, so Mr. Kirton started fighting back. The staff came out and asked if they were done, and Mr. Kirton walked away. He went to his place (on Burrows, where he was living at the time) and slept and then came back because he did not have any food. [ 26 ] He testified that he did not want to fight Mr.

Day that evening, he did not want to hurt him, he only punched and stepped on him to stop it. Mr. Kirton described the assault ending and then he “dragged” Mr. Day and was “pulling him off”. He dragged Mr. Day out of the path of delivery truck, which he sees all the time delivering food and other items to the 7-Eleven.

[27] He was smoking methamphetamine that day. THE INJURIES [28] Mr. Day’s medical records from the Health Sciences Centre were filed as an exhibit in the trial. He suffered from extensivefacial fractures requiring plastic surgery. There was hyperattenuation of the right frontal lobe of the brain, but follow-up testingindicated that there was no intracranial hemorrhage, allowing neurosurgery to withdraw from any further assessment. Initially, doctorshad noted that the hyperattenuation was either artifactual or due to an intracranial bleed, but with the latter ruled out, it appears this was apre-existing issue.

His neurological status seemed poor, but in the absence of an intracranial hemorrhage, doctors queried metaboliccauses, withdrawal or seizures. Mr. Day admitted to having seizures in his testimony. The medical reports also noted that Mr. Day hada past medical history of substance misuse, Type 2 Diabetes and chronic pain. He also had a previous fracture to his face, involving hisnose. On September 9, 2021, Mr. Day was further assessed for traumatic brain injury, due to reduced levels of consciousness. Atraumatic brain injury was ruled out.

There were no skull fractures or cervical spine injuries. [29] The evidence in the trial leaves some doubt as to the causation of the injuries. Although I might acquit on the causation issuealone, the defence also raised the defence of self-defence, which I will deal with in the next section. SELF-DEFENCE [30] The legal tests with respect to self-defence are set out in the Supreme Court of Canada case of R v Khill, 2021 SCC 37.

JusticeMartin, writing for the majority, conceptualized the three inquiries of self-defence as 1) the catalyst, 2) the motive, and 3) the response. [31] The Crown bears the onus of disproving beyond a reasonable doubt at least one of the three facets of self-defence (Khill at para18). [32] The first question is whether Mr. Kirton believed a threat of force was being used against him. The video shows Mr. Daycoming from across the street, running and then walking quickly, making a bee-line for Mr. Kirton, who was sitting on the cement infront of the 7-Eleven, to the left of the front door to the store. As Mr.

Day got closer, Mr. Kirton stood up. Mr. Day threw his sweateron the ground and raised his fists at Mr. Kirton. Mr. Kirton testified that this was the second time that day that Mr. Day had approachedhim to fight. “He came right at me.” The Crown conceded that she cannot disprove that the catalyst for this event was Mr. Day’saggression and threatening behaviour, such that it was reasonable for Mr. Kirton to believe force was threatened towards him (s.34(1)(a), Criminal Code). [33] The second inquiry is whether Mr. Kirton’s motive for the physical force he used was to defend or protect himself.

The Crownargued that it was not, rather, Mr. Kirton’s motive was vigilantism or vengeance. The video shows otherwise. Mr. Kirton was sitting onthe ground, panhandling, watching Mr. Day approach. He stood up as Mr. Day got closer. He did not rise and assault Mr. Day and sendhim away. He retreated in the face of Mr. Day’s fists up, advancing. This does not demonstrate that he wanted to exact vengeance onMr. Day who was somehow threatening his panhandling spot. In his testimony, Mr. Kirton stated that he was defending himself, andwhen asked why he stepped on Mr. Day, he answered that it was to end the fight.

The Crown has not satisfied me that Mr. Kirton wasnot defending himself (s. 34(1)(b)). [34] The final inquiry is whether Mr. Kirton’s response was reasonable in the circumstances (s. 34(1)(c)). The Crown argued thatit was not. The

section sets out several non-exhaustive factors to consider in determining whether the response is reasonable, in s. 34(2)(

a) to (h). The

section requires that consideration of those factors must be done in light of the relevant circumstances of Mr. Kirton, Mr.Day and the acts. [35] Consideration of whether Mr. Kirton’s acts were reasonable in the circumstances then, takes into account his schizophreniaand Mr. Day’s previous aggression towards him (see Khill at paras 64, 66 and 67), without slipping “into the mind of the accused” (Khillat para 65). [36] I consider that it was the second time that day that Mr. Day threatened to fight with him, and this time he had his fists raisedand his sweater thrown down to do so. Mr.

Kirton had his arms down and took four or five steps back, with Mr. Day still advancing onhim with fists cocked. Then, in a seven-second time frame, Mr. Kirton kneed Mr. Day in the mid-body and then punched him, then mayhave made contact with a part of his shoulder or the left side of his neck or jaw and then appeared to step away. The subsequent actionsof kicking and shoving him away appear to evidence an intention to get him to leave. He saved Mr. Day by dragging him out of the pathof the delivery truck backing up to the store. [37] The Crown argued Mr. Day did not actually swing at or punch Mr.

Kirton, however, it is not necessary for someone to wait forassaultive physical contact before defending themselves. [38] The Crown agreed that the threat of physical contact was imminent, but that there were other means available to Mr. Kirton torespond to the threat of force, such as walking away or going into the store for help. I note however, that this was the second time thatday that Mr. Day had wanted to fight or assault Mr. Kirton. The video shows Mr. Day right in front of him, less than a meter from him. In those circumstances, I do not think it was unreasonable for Mr.

Kirton to physically defend himself. It is not necessary for a person toretreat in order to avail themselves of the defence of self-defence (R v Lavallee (1990), (SCC), 55 CCC (3d) 97 at 124(SCC)). [39] Mr. Kirton’s role in the incident encompasses not only the seven-second physical interaction leading to the injuries, but rather,the entire interaction between the two men, including the history of unfriendliness between them. I note that until Mr. Day showed upand threatened him, Mr. Kirton can be seen on the video socializing and interacting with other passersby and staff. He appeared to behappy.

He did nothing for some time as Mr. Day approached, and then finally stood. I consider the facts of this case in light of JusticeMartin’s statement at paragraph 82 of Khill: In this way, s. 34(2)(

c) was intended to serve a distinctive, balancing and residual function as it captures the full scope of actions the

accused could have taken before the presentation of the threat that motivated the claim of self-defence, including reasonable avenues theaccused could have taken to avoid bringing about the violent incident. (Emphasis in original.) [40] There was nothing to be done before the presentation of the threat in this case. Mr. Day appeared quickly and it was not untilhe was standing right in front of Mr. Kirton that he threw down his sweater and cocked his fists. [41] Mr. Kirton initially retreated when Mr. Day came at him. He used his knee and fist and may have struck Mr.

Day’s face withhis foot on one or two occasions, but I am not satisfied beyond a reasonable doubt that it was his intention to smash Mr. Day’s face ontocement, or the hit would have been more obvious and perhaps prolonged. After Mr. Day was apparently injured, Mr. Kirton did notcontinue the assault, but rather tried to throw or shove him out of the area, in a “get out of here”, “go away” manner. When the deliverytruck was backing up, with Mr. Day directly in its path, Mr. Kirton pulled him out of the way, likely saving his life. Mr.

Kirton then left,but was not running away, as someone who has committed an offence might do. Similarly, he returned to his usual panhandling spotlater in the evening and when the police arrived, he identified himself. This post-offence conduct does not demonstrate a guiltyconscience. In looking at Mr. Kirton’s role in the entirety of the incident, it demonstrates a lack of intent to punish, assault or injure Mr.Day. [42] I recognize that Mr. Kirton was bigger and younger than Mr. Day and appeared to be more physically fit or capable, but hisactions in defending himself were brief. [43] Mr.

Day’s injuries were significant. He had multiple facial fractures requiring plastic surgery. But in considering the natureand proportionality of Mr. Kirton’s response to the threat Mr.

Day posed, it is important not to engage in backward reasoning to look atthe consequences of the accused’s actions and the resulting injuries, rather than the reasonableness of the force used by the accused. (See R v Omand, (OntSC) at para 24; R v Mason, 2020 MBQB 151 at para 96.) [44] It is also important not to dissect and isolate each split second of the interaction with a view to holding the defendant to a strictand precise measure of the exact amount of force required to defend themselves.

The reality of such a circumstance is more messy andhuman: [A] person defending himself against an attack, reasonably apprehended, cannot be expected to weigh to a nicety, the exact measure ofnecessary defensive action. (R v Baxter (1975), (ON CA), 27 CCC (2d) 96 at 111 (ONCA), cited in Omand at para 25.) [45] Justice Martin stated it eloquently in Khill: Parliament made a choice not to repeat the freeze-frame analysis encouraged by such concepts as provocation and unlawful assault.

Rather than a forensic apportionment of blows, words or gestures delivered immediately preceding the violent confrontation, the“incident” extends to an ongoing event that takes place over minutes, hours or days.

Consistent with the new approach to self-defenceunder s. 34, judges and juries are no longer expected to engage in a step by step analysis of events, artificially compartmentalizing theactions and intentions of each party at discrete stages, in order to apply the appropriate framework to the facts. (At para 83.) [46] Accordingly, the single overarching standard of reasonableness “reflects the complexity of human interaction and allows triersof fact to appropriately contextualize the actions of all parties involved, rather than artificially fragmenting the facts” (Khill at para 83). [47] Mr.

Kirton played no role in instigating or escalating the incident. If anything, once it was clear that Mr. Day was injured, hisonly further actions were to send him on his way, and then to save him from being run over by a truck. [48] Moreover, it is Mr. Kirton’s state of mind with respect to the threat posed by Mr. Day that is to be considered. Mr. Kirton wasand is a vulnerable person by reason of his mental illness.

His perception of the threat posed is therefore affected by his mental illness,which must be taken into consideration when assessing the reasonableness of his actions and exercises in judgment. (See R v Whyte(1987), 85 Cr App R28 at 285, Lord Chief Justice, cited in Omand at para 28 and Khill at para 124) [49] The nature and proportionality of Mr. Kirton’s response to the threat posed by Mr. Day is “but one factor” to consider indetermining the reasonableness of his actions (Khill at para 42).

The defence is not disproved even if the accused escalates the incident,leading to death of the victim, or uses disproportionate force. It would be difficult, in considering all the circumstances in this case, toview Mr. Kirton’s conduct as rash, reckless or unreasonable. Did he strike Mr. Day (intentionally or otherwise) harder than absolutelynecessary? Perhaps, but that is not the test. [50] The Crown has not satisfied me beyond a reasonable doubt that any of the three elements of the defence of self-defence aredisproven in this case. DECISION

[ 51 ] The requirements of the defence of self-defence have been met in this case. Therefore, MICHAEL KIRTON is not guilty of an offence and is acquitted of the aggravated assault on Cleavon Day from September 1, 2021. Original Signed by Judge C.A . Devine C.A. DEVINE, P.J.