R. v. Atlagic, 2013 ONCJ 628

Citation: R. v. Atlagic , 2013 ONCJ 628 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — VLADIMIR ATLAGIC Before Justice P. Harris Judgment delivered on November 14, 2013 D. Mitchell.....….................................................................................................... for the Crown K. McArthur........................................................................................................ for the Defence Harris, J.: ​ [ 1 ] Vladimir Atlagic was charged with assault causing bodily harm and threatening death in relation to an incident occurring on November 16, 2012. The Crown proceeded by

summary conviction and the defendant pleaded not guilty. The Background [ 2 ] On 16 November, 2012, three friends who had previously worked together met to share food, drinks and socialize. Following a meal and refreshments they went to a second venue to play ping-pong at a club known as “Spin”, in the early evening hours. They decided to “call it a night” sometime between 9:30 p.m. and 10:30 p.m. and emerged from “Spin” into a north-south alleyway that connects King Street West on the north to Wellington Street on the south.

One major drawback associated with the location of a nightclub in a relatively narrow laneway is that there is no sidewalk by which pedestrians can safely leave the area. [ 3 ] An incident took place in the laneway that involved some type of conflict between the defendant, Vladimir Atlagic, the operator of a sports utility vehicle that was attempting to pass a number of pedestrians in the laneway, and the aforementioned three friends who had just emerged from the “Spin” Club and were walking out of the alleyway to head home.

James Bennett the complainant, sustained a blow to the face that resulted in a fall and a severe laceration to his forehead that required 8 sutures to close (See Exhibits 1, 2). He and his two friends, Kelsey Aitken and Carolyn Hayden, left the “Spin” Club together and the factual dispute in this case centres on: (1) where the three patrons of “Spin” were positioned in the laneway after they left the Club, (2) what type of contact was made with the Defendant’s vehicle, and (3) whether Mr. Bennett began acting aggressively towards Mr. Atlagic after the contact with his vehicle, such that Mr.

Atlagic was justified in striking Mr. Bennett in self- defence. The Crown Position [ 4 ] The Crown takes the position that the defendant committed an assault that resulted in bodily harm to James Bennett that was unlawful and not legally justifiable on the basis of self-defence. The Defence Position [ 5 ] The defendant submits that his use of force against the person of James Bennett was lawful. It was argued that he was justified in using reasonable force to protect himself from the imminent threat of being struck by Mr. Bennett.

He further asserts that he used no more force than was proportionate to the immediate need and he acted in justifiable self-defence.

The Law [6] When the incident that occurred on November 16, 2012 took place, the law of self-defence was governed by subsection 34 to37 of the Criminal Code. On March 11, 2013 the Citizen’s Arrest and Self-defence Act, S.C., 2012 C.9 came into force. The Act repealedsubsections 34 to 37 and replaced them with a new

section 34, which now applies to all situations in which self-defence is raised. Theamended defence now provides, as follows: 2. Sections 34 to 42 of the Criminal Code are replaced by the following: 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.

(2) In determining whether the act committed is reasonable in the circumstances, the Court shall consider the relevantcircumstances of the person, the other parties and 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 offorce; (

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 andthe 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 or threat of force; and (

h) whether the act committed was in response to a use or threat of force that the person knew was lawful. (3) Subsection (1) does not apply if the force is used or threatened by another person for the purpose of doing something thatthey are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits theact that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully. [7] On the basis of the recent Superior Court of Justice decision in R. v. Pandurevic 2013 O.J.

No. 2380, (which, while notbinding authority, presents a well-crafted argument for retrospectivity), and the view I take that the new self-defence amendments aremore favorable to self-defence claimants than the former ss. 34 to 37 of the Code, the defendant should have the benefit of the newprovisions.

As noted, MacDonnell J. in Pandurevic has developed a cogent analysis that the self-defence amendments applyretrospectively and that the new enactments respecting self-defence would have immediate application notwithstanding that the conductunderlying the defence occurred prior to the coming into force of the amendments: (at paragraph 43). [43] For the reasons I have expressed, I am of the view that to apply the amendments prospectively only would frustrate theremedial aims of the legislation by leaving in place for several more years the significant mischief that Parliament manifestly meant toeradicate.

That is a factor that strongly suggests an intention for a retrospective application. Further, the strength of the presumption against retrospectivity is attenuated by the fact that the amendments will overwhelmingly be beneficial to those whoclaim to have acted in self-defence and that any adverse impact of a retrospective application will be isolated and minimal.

Aconsideration of all of the circumstances, in my view, gives rise to a clear and compelling inference that Parliament meant for theamendments to have immediate application at all trials in which the defence of self-defence was asserted. [8] Consequently, the applicable principles require this Court, where the defendant asserts self-defence to justify his actions, todetermine whether the Crown has proven beyond a reasonable doubt that the defence does not apply: R. v. Cinous (2002) 2002 SCC 29, 162 C. C. C. (3d) 129 at paragraph 39 (S.C.C.). The elements of the new defence are:

(

a) the defendant had a reasonable perception force is being used against his self – s. 34(1)(a); (

b) the act was committed while defending oneself from the use or threat of force - s. 34 (1)(a); (

c) the act committed is reasonable in the circumstances - s.34 (1)(c). [9] The Crown is not required to prove beyond a reasonable doubt that the defendant’s conduct fails on every element of thedefence. It suffices if the Crown can prove beyond a reasonable doubt that any one of the elements is not established: R. v. C.J.O. (2005)O.J.

No. 5006 (Ont.C.A.). [10] Additionally, I am mindful of appellate level admonitions to the effect that trial courts are not to look at the consequences ofthe defendant’s actions in terms of resulting injuries, but rather, the reasonableness of the force used in repelling the complainant’s attackwhich was occurring: R. v. C.J.O., supra: R. v. Baxter (1975) 33 C. R. N. S. 22 (Ont.C.A.). [11] Finally, there is no question that invoking the defence of self-defence, an accused’s actions can only be justified if he or she isrepelling force with force.

In other words self-defence cannot be used as ‘a cloak or a means to injure someone’: R. v. Flood

(2005) O.J.No. 3418 (C.A.). Similarly, if someone acts in anger or frustration to retaliate, rather than to defend himself or herself, there can be nodefence: R. v. Parker (2013) 2013 ONCJ 195 , O. J. No. 1755 (Ont.C.J.). [12] Additionally, I have employed the credibility formula articulated by the Supreme Court of Canada in R. v. W.(D.) (SCC), [1991] 1 S.C.R. 742 (S.C.C.) and have been mindful of the requirement that I avoid the common mistake made by trial courtsof treating the evidence as a contest involving a choice of which body of evidence I prefer, the evidence adduced by the Crown or thedefence.

As Cory J. noted: “It is particularly important in a case in which the prosecution depends on the credibility of the complainantand the accused testifies, that it be very clear and unequivocal that the prosecution has not proved its case beyond a reasonable doubt if,after considering the evidence of the accused and the complainant together with any other evidence, there is a doubt”. Fact-finding Analysis James Bennett [13] In my view James Bennett was an honest witness.

He gave his evidence in a forthright manner, freely admitting he had a totalof five beers at the two establishments they attended, and was candid about what he was able to recall before he was struck. He testified,“Parts are fuzzy to me”. I am satisfied his lack of awareness is consistent with the after effects of the concussion he sustained. Heconceded that he felt the effects of the beer to some degree but maintained that his level of consumption was ”not outside of his normaluse (of alcohol)”. [14] He testified the vehicle “brushed by me” and he tapped the back window to let the driver know “like whoa”.

I am satisfied thatthe passage of time since the event adequately explains the discrepancy between what he told the police “two knuckle taps on the glass”of the S.U.V. and his “one knuckle tap” evidence in court. [15] Counsel for the defence argues that Mr. Bennett’s apologizing begs the question of whether he simply tapped on the windowor struck the vehicle much harder causing damage. I have considered this carefully, and the more probable inference that I draw is thatMr.

Bennett has adopted the classic Canadian approach to aggression and conflict by apologizing to diffuse the situation even if he wasnot at fault. [16] According to Mr. Bennett, he tapped the window, the vehicle “screeched to a halt” and the driver came towards them irate andangry. He said that a person with “a large build” got out of the vehicle and “began approaching us.” “I recall swearing. I recall, “What thefuck was that?” Mr. Bennett’s first impulse was to run but he said he “didn’t think it was right” to leave two female friends there.According to Ms. Hayden, Mr. Bennett said: “We need to get out of here”.

Mr. Bennett stated that the next thing he knows, “I came toagainst the side of the building”. “Blood was all over my pants” and his friend was holding a paper towel to his head. [17] Most telling is the fact Mr. Bennett is 6’2” tall and weighs 180 pounds and has had no training or experience with physicalconflict either in sports or in his chosen field of employment. These facts do not mean that he was not the aggressor in the incident but itmakes the inference of such conduct much less likely, given the relatively larger build of the defendant. I am satisfied Mr.

Bennett’sevidence was consistent, logical, plausible and any lack of detail at the time of the physical contact with the defendant is entirelyunderstandable given the probable concussion he sustained after striking his head on the road surface. Kelsey Aikman [18] Kelsey Aikman described how the group of three met on the 16th of November, 2012 to hang out after work. She had knownMr. Bennett and Ms. Hayden for five, six years and had worked with them in the past at a film company.

She stated she had food and abeer at the first restaurant then they went to “Spin”, which was just across the street from the first venue. They decided to leave earlyand a car “rolled up really close to us”. It was a black S.U.V, a Navigator. She said her friend “J.” (Mr. Bennett) tapped the back windowas if to say “we were there, be careful”. “We were all in a little line and he came close to us all”. [19] Then the car “came to a sudden stop” and the man in the car “came around really quickly” “really angry”. According to her,“J.” had just said, “Let’s get out of here” and “we took a few steps”.

He approached, “moving to us quickly with purpose” and “when hegot there he just hit J.” After the punch was thrown, referring to her statement to the police, Ms. Aikman quoted the man as saying “I’llkill you if you touch my car again”. She testified that he hit J. very hard. J. fell down and he started to approach J. again and “I got inbetween the two and said, “Get back in the car”. J. was unconscious on the ground. Ms. Aikman was asked “did J. do anything as he

approached?” and she answered, “No, he only whispered to me we should go”. She testified the male “got back in the car” and “quickly backed down the alley.” She stated she “called police” and “let them know where it (the car) was going”. [ 20 ] To my mind Ms. Aikman’s testimony was very credible and thoughtful. First, she was observant. The vehicle was in fact a black Navigator (See exhibit 3C). Second, she was clear and precise about where the group of three were in relation to the vehicle.

In her diagram (see Exhibit 4) she illustrated how all members of her group were walking in a line next to the rail above the “Spin” club. Third, her evidence was fair and balanced. She was clear the car did not hit anyone, “No, it came close to us”. She was asked if Mr. Bennett put his hands up when the driver of the car approached. I would imagine she was most likely watching the approaching male at this point, not Mr. Bennett besides her. Demonstrating some integrity, she did not embellish her evidence to support her friend and said only that, “I don’t recall that”. She was asked if Mr.

Bennett had any level of intoxication and her answer was reasonably balanced, “I don’t recall. I don’t think so”. But she was also very sure of herself when it concerned what she actually saw. She was asked, “Mr. Bennett put his hands up and said, “You have a problem with that” and took a step towards the man?” and she replied, “No, there was no aggravation from us. He [the driver] approached and as soon as he got up to us he hit J.” [ 21 ] Essentially, Ms. Aikman impressed as a very self-confident, sensible young woman.

She describes the shock she felt when J was hit “very hard.” She says, “I was very scared.” She explained how she intervened and told the male to get back in his car and tried to help her friend who was trying to walk bleeding from the head. Then she called police and gave them the details and direction in which the car was proceeding. These are the actions of a person who was experiencing a typical human reaction of outrage at behaviour she had witnessed. Had Mr.

Bennett damaged the S.U.V. and advanced aggressively towards the accused with his hands in the air, it is highly unlikely she would’ve had the same caring reaction towards Mr. Bennett or felt the need to direct the police as to how to locate Mr. Atlagic, if he had been the victim of her friend’s conduct. [ 22 ] The concerns expressed by counsel for the defence that Ms. Aikman participated in a group discussion of what happened with her friends and that she told the police “he tapped the car,” (not the window) bear some discussion.

When witnesses discuss the details of an event they witnessed, there is always a real risk of collusion. It is highly unusual for three independent observers to describe a contact with a vehicle as a “tap” or a “tapping.” This descriptor is very likely a product of the natural human tendency to minimize what occurred on the part of Mr. Bennett, and a word that his two friends unconsciously adopted.

A year later at the time of the trial, they have probably convinced themselves that the contact with the vehicle was a “tap.” I do not see this as a conspiracy to fabricate as much as a rationalization that became their reality over time. It will suffice, in my view, to substitute “a sharp knocking or rapping” on the window as the more likely description of the contact as it must have been designed to get the driver’s attention. I was not able to discern any other signs of collusion on the part of the Crown witnesses.

There was no other indication any of the three Crown witnesses changed their evidence as a result of these casual discussions. As to the second concern, it is not inconsistent to say Mr. Bennett “tapped the car” as the window is obviously part of the car. She does say she told police and her boyfriend, a police officer, that it was the window he tapped. In all the circumstances, there is nothing inconsistent, illogical or implausible about Ms. Aikman’s evidence generally, and I find her a credible witness. Carolyn Hayden [ 23 ] Carolyn Hayden was equally credible.

She testified that they left the “Spin” venue early, between 10:00 and 10:30 p.m. She stated, “We had to get home”. She said that she had two or three beers at the first venue and one beer at “Spin”. She stated that she noticed no effects of alcohol on Mr. Bennett or Ms. Kelsey. She depicts the three friends on the outside of the alley as they left the “Spin” club as being close together (see Exhibit 6). She gave evidence that a car came by them very close, but didn’t see anybody in her group touched by the car. “J.” gave it a tap on the back window”.

She described the car as “stopping”. “The man came out and said, ‘What the fuck?’ and decked ‘J”. She was asked how he got out of the car and she stated he was aggressive, upset and moving very quickly. He was, “Not happy.” “He didn’t leave any time for conversation, he just punched”. She was asked, “What was “J.” doing?” And she replied, “He said we need to get out of there”. “J.” was a bit afraid and then he got punched”. She testified “J.” was “unconscious” then was quite confused. She said the man got back in the car and took off quickly “towards King Street.” Her evidence was fair and balanced as well.

She agreed she didn’t see what Mr. Bennett was doing before he was punched. But most importantly she was clear he wasn’t advancing on the accused waving his hands in the air. “He was close to us, just standing there. He wasn’t moving. I could feel how close he was to me”. On the totality of her evidence I was satisfied she was doing her best to tell the truth. She was wrong about the direction the car was going after the incident, (“towards King Street”) however, this discrepancy was immaterial and understandable given that the event occurred nearly 12 months before the date of the trial.

Vladimir Atlagic [ 24 ] Mr. Atlagic testified and offered evidence on a number of points. He confirmed he was travelling to work as a doorman at between 9:15 and 9:30 p.m. and he drove northbound in the lane towards F Stop, a club across from the “Spin” in the same alleyway. He said he intended to park in the vicinity of the white car on the right side of the lane in Exhibit 5a. He stated he was going 5 to 7 km an hour in the alley because it is always filled with people. He said he stopped because three people were smoking in the middle of the alley blocking his way (the three Crown witnesses).

He gestured with his hand as if to say “please move”. He stated that the male (he was referring to Mr. Bennett) who was in front of him spit in front of the car and continued chatting with the girls. He gave evidence that he honked twice, and “the guy looked like, ‘you’re bothering us again”. Mr. Atlagic said that the male in front of his vehicle then took two and a half minutes to move towards “Spin” to allow him to pass by. [ 25 ] He stated, “Then I heard a crazy sound like someone broke the window”. He got out in saw a dent right beside the gas tank (see exhibits 3a, b, c).

He testified that he came out of the vehicle and said, “Why did you just hit my car?” He said, “the male (referring to Mr. Bennett) made a step towards me with his hands in the air and said “my hands are loose”. “You have a problem with that?” “Then he took another step really close to my face”. Mr. Atlagic testified that “I think I’m going to get hit”. “I move his hands and I punch his left cheek”, “he slipped and fell and hit his head”. Mr. Atlagic said he knew from “all my years of training, “I had to defend myself”. He said he did not know “how he (Mr.

Bennett) was intoxicated”, “his eyes were not clear, he did not look like a stable person”. The defendant gave evidence the girls said, “Please get in the car. Please leave us alone. So I just drove away”. He said he reversed back to Wellington Street “at 5 to 7 km/h.” The next morning he said he called the club where he had intended to work the night before and told them “he wouldn’t go there again”.

[ 26 ] Under cross-examination Mr. Atlagic outlined his background. He stated he had trained in wrestling, and jujitsu. He practiced mixed martial arts for 2 to 3 years from 2003 to 2006. He said he had always been very active in sports and had a long history of boxing every two, three weeks for 8 to 10 years. Additionally, he stated he had worked as a doorman at a number of locations in Toronto for the past seven, eight years. Mr.

Atlagic gave evidence that he weighed 217 pounds and was 6’1” tall and that more recently he was engaged in the construction business. [ 27 ] In light of all the evidence, even with the not insignificant quantities of alcohol consumed by the three Crown witnesses, I cannot accept Mr. Atlagic’s evidence on key features of this incident. He testified that the group was standing, effectively loitering, in the middle of the laneway blocking traffic. He gave evidence they stood there blocking the progress of his vehicle, and were smoking.

This would have constituted very dangerous and provocative conduct on the part of three individuals, particularly Mr. Bennett who was said to have spit, looked indignant at being hurried out of the way, and took 2.5 minutes to move to the side of the alleyway, all the time blocking a very large vehicle. On the other hand all three said they were leaving the area early, heading home. [ 28 ] Ms. Aitken and Ms.

Hayden in their evidence, provided diagrams showing how they were on the side of the alleyway close to the railing above the downward staircase to the “Spin” venue (see exhibits 4, 6) as they headed out of the alley. I’m convinced the group of three were leaving the area and had no reason to be loitering in a position of danger in the middle of the travelled portion of the lane and particularly that Mr. Bennett had no reason to become engaged in a classic “game of chicken” with a very large vehicle.

The more probable inference is that the Atlagic vehicle came quite close to where the three were collecting to leave on the side of the roadway, next to the “Spin” railing, and Mr. Bennett knocked on the vehicle side window to make a point that the vehicle was very close to them. [ 29 ] I also reject Mr. Atlagic’s description of the “crazy sound” like “someone broke a window.” This sound seems, interestingly, more consistent with contact with his window. The three photographs of his car show a small impression on the body that is barely visible to the naked eye. It is beyond comprehension that Mr.

Bennett could have damaged such a heavy vehicle with his bare hand or that Mr. Atlagic would have been able to see a slight impression on the car, at night, in the laneway (See exhibits 3a, b, c, in which a slight impression has been circled to make it visible). The vehicle was examined for damage approximately 3 weeks later and there is therefore no way of independently establishing that the “damage” to the vehicle occurred on the night in question ─ not that there is any onus of proof on the defendant. [ 30 ] All of the Crown witnesses were very clear that the contact was a “tapping” on the window.

Common sense and human experience alone suggests that the contact with the vehicle was a “sharp rap” on the window as a mild warning about the danger Mr. Bennett felt as a result of the vehicle passing by in such a close proximity to him and his friends. He describes the vehicle as having “brushed by”. In the circumstances it was highly unlikely that he intended damage to the vehicle with his bare hand ─

an act, that if it occurred, would have been more likely to have harmed the actor than the vehicle. [ 31 ] Finally, I reject the notion that Mr. Bennett took two steps towards Mr. Atlagic, with his hands in the air and came “really close to the defendant’s face” and said, “My hands are loose, you have a problem with that?” I find as a fact that those actions did not occur. First, if Mr. Atlagic got out and saw a dent right beside the gas tank, he would have been positioned right in front of Mr. Bennett to do so, given Mr.

Bennett’s position between the vehicle and the guard rail on the edge of the staircase to “Spin”, as the vehicle went by. The logistics of where the dent was and where the group of three friends were situated leaves little room for Mr. Bennett to have advanced at least two steps toward Mr. Atlagic. [ 32 ] Second, the weight of the evidence from the two eyewitnesses Ms. Aikman and Ms. Hayden creates a picture that is both consistent and clear. They made no observations of Mr. Bennett advancing on Mr. Atlagic, with his hands in the air.

If anything, when the driver of the Navigator got out of the vehicle and approached, Mr. Bennett was heard to say “let’s go”. Ms. Aikman was asked, “Mr. Bennett put his hands up and said you have a problem with that and took a step towards the man?” And she replied, “No”. There was no aggravation from us. He approached and as soon as he got to us he hit J.” Further, Ms. Hayden quotes Mr. Bennett as saying (when the driver approached), “we need to get out of here”. She said (the driver) “didn’t leave time for conversation he just punched”.

She testified, “J was a bit afraid and then he got punched”. [ 33 ] Third, there is no doubt on all of the evidence, Mr. Atlagic stopped abruptly, got out of his vehicle quickly and came around the back of the Navigator to confront the person or persons who had made an audible contact with his car. There is no doubt he was moving with purpose and angry enough to make an issue of the perceived interference with his property. I contrast this with Mr. Bennett’s concerned rapping on the vehicle’s back window to let the driver know that he was very close to the pedestrians. Given Mr.

Atlagic’s relatively larger size (Mr. Bennett says he was a person with a large build) and the considerably different states of mind of both Mr. Bennett and Mr. Atlagic as I perceive them, it is simply not consistent with logic and human experience that Mr. Bennett was the protagonist in the situation such that Mr. Atlagic was justified in striking him in self-defence. [ 34 ] Finally, there were three other features of Mr. Atlagic’s evidence that brought his credibility into question. He denied being angry just before he emerged from the car.

He said at that time he felt “hurt”, an emotion that does not seem consistent with reality. As well, he testified that after the incident the girls said, “Please get in the car. Please leave us alone.” This testimony was later denied in cross-examination and in any event would appear (“leave us alone”) to be completely inexplicable if in fact Mr. Bennett was the aggressor. As well, and notwithstanding his expert training in martial arts, I am not prepared to believe that he could deliver a blow in self-defence with such split-second finesse that he was able to have struck Mr.

Bennett with a half-opened hand in a pushing action as he describes. This in my view is an attempt to minimize what was nothing less than a punch struck with sufficient force that it knocked Mr. Bennett off his feet. Conclusion [ 35 ] In all the circumstances, I do not accept Mr. Atlagic’s evidence and it does not raise a reasonable doubt. On the other hand I’m convinced, in regard to all the evidence, that no reasonable doubt arises, and that the Crown has disproven beyond a reasonable doubt that the assault on Mr. Bennett meets the necessary force requirements of section 34 (1) of the Code .

The nature of the force used by Mr.

Atlagic was not based on a reasonable perception of force against his person, nor did he have a defensive purpose to his actions, nor from an objective point of view was his striking Mr. Bennett reasonable. In coming to this decision, I bear in mind the nature of the assault that Mr. Bennett sustained, that Mr. Bennett had been drinking, and was probably being more assertive and somewhat reckless in rapping on the window, than he would normally be. I recognize the fact that Mr. Atlagic was to some degree, hyper-sensitive to anybody touching his mother’s automobile. It may have been reasonable for Mr.

Atlagic to have rather sternly admonished Mr. Bennett for his actions. Yet Mr. Atlagic went far beyond what was required. There was no reasonable perception of force being used by Mr. Bennett, no defensive purpose on the part of the defendant and no objectively reasonable basis for using force in self-defence. Even in the emotional state Mr. Atlagic found himself in, after the contact with his car, I have no doubt that a reasonable person would have realized that Mr. Bennett was actually fearful and trying to escape from the situation and not an aggressor capable of placing Mr.

Atlagic in fear of an imminent attack. [ 36 ] Indeed I am satisfied beyond a reasonable doubt that Mr. Atlagic was acting out of anger, not self-defence. The most relevant of the nine factors listed in section 34 (2), are: “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” and “the size, age, gender and physical capabilities of the parties to the incident”.

In my view the use of force was not imminent and the disproportionate size and capabilities of the defendant are two more factors that speak volumes ─ that in all the circumstances, the use of force by Mr. Atlagic was not called for and was unreasonable. [ 37 ] I therefore find Mr. Atlagic guilty of assault causing bodily harm on James Bennett on November 16, 2012. Both trial counsel have agreed, as I do, that the charge of threatening death has not been proven beyond a reasonable doubt, and will be dismissed. Harris, J. November 14, 2013