R. v. Forsythe Date:, 2015 BCPC 387

Citation: R. v. Forsythe Date: 20150506 2015 BCPC 0387 File No: 60506-1 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. FORCE MCLELLAN FORSYTHE ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J. CHALLENGER Counsel for the Crown: J. Krupa Counsel for the Defendant: D. Hopkins Place of Hearing: North Vancouver , B.C. Date of Hearing: May 6, 2015 Date of Judgment: May 6, 2015

[ 1 ] THE COURT: These are my reasons following a trial in the matter of Force McLellan Forsythe. He is charged with assault causing bodily harm to Philip Unger arising February 15th, 2014, in West Vancouver. The incident occurred in the parking area near the Whole Foods and Cactus Club located in the Park Royal South Mall. [ 2 ] At that location are two crosswalks running roughly north to south crossing one westbound and one eastbound lane of travel. One is located to the west coming from the area of Whole Foods and another to the east by the Cactus Club.

There is a two-lane access roadway running north and south with one lane coming into the parking lot and one lane exiting the parking lot which meets as a T between the two crosswalks. The distance between the two crosswalks is approximately the width of three lanes of travel. [ 3 ] Mr. Forsythe, his sisters, mother, and stepfather had been out for dinner at the Cactus Club and were heading to their cars. One sister had already left the area. The complainant, Mr. Unger, his wife, and daughter had been shopping at Whole Foods.

The accused and his family were in the east crosswalk crossing from the sidewalk to the parking area when Mr. Unger and his family approached that crosswalk in their vehicle. [ 4 ] The assault occurred after Mr. Unger got out of his vehicle to confront the accused. Mr. Forsythe says he acted in self-defence having perceived that he was under threat of imminent attack by Mr. Unger. This defence was thoroughly and expertly put before the court by counsel, Mr. Hopkins. [ 5 ] The Crown called the three Ungers and two independent civilians who witnessed the assault. Mr.

Forsythe, his sister, Alyssa Forzley, and his mother, Shana Forzley, testified for the defence. Aside from the accused, none of the witnesses had any criminal history. Review of Evidence and Assessment of Reliability [ 6 ] A security video which captured the material events was entered into evidence and was viewed extensively throughout the trial. The video depicts that Mr. Unger was operating his vehicle in a safe and appropriate manner in the circumstances.

In fact, the manner in which he approached and entered the area is indistinguishable from that of the many other vehicles seen in the 10 minutes of video before the assault occurs. [ 7 ] The Unger vehicle began crossing the west crosswalk at the same moment the accused's family stepped onto the east crosswalk. He did not come to a full stop at the west crosswalk, but proceeded very slowly as he approached the east crosswalk. The vehicle was well back of the crosswalk as the accused's family passed in front of it. It does not appear that either Mr.

Forsythe's mother or sister stopped or hesitated or looked at the Unger vehicle, although his stepfather appears to have glanced in that direction and taken his wife's arm once they were on the north side of the vehicle. [ 8 ] Mr. Forsythe was a few paces behind his family. He hesitated momentarily and then began to walk north again clearing the lane the Unger vehicle was in. It was only then that Mr. Unger began to slowly move his vehicle forward into the crosswalk. The vehicle stopped again when the accused began walking toward the driver's area. Mr. Forsythe spat on the window and looked at Mr.

Unger for a second or two and turned to walk north again. [ 9 ] Mr. Unger almost immediately opened his door and got out. He took three or four steps walking slowly with his arms and hands down at his sides. The accused glanced back as Mr. Unger was getting out of the vehicle and then turned slightly away to quickly take off his jacket. He ran back several steps towards Mr. Unger striking him in the face with sufficient force to lift him off his feet and fall back to the ground. The accused immediately stepped forward as though he was about to kick a soccer ball and struck Mr. Unger again with his foot. Mr.

Forsythe then walked away. [ 10 ] The video shows Mrs. Unger and their daughter getting out of the vehicle and checking on Mr. Unger and pursuing the accused and his family. The independent witnesses, Ms. Wallace and Mr. Emlyn, can also be seen attending to Mr. Unger and calling 911. [ 11 ] Mr. Forsythe testified that Mr. Unger put his family at risk in the crosswalk by failing to stop at the stop sign at the west crosswalk and proceeding too quickly toward the east crosswalk.

He asserted that the vehicle "had tried to mow them down" and that it had come close to colliding with the three other members of his family. He said both his mother and sister were alarmed and made verbal exclamations and looked shocked and stunned. He later conceded that he was unaware that Mr. Unger had not come to a full stop at the east crosswalk at the time. [ 12 ] Mr. Forsythe said when he looked at Mr. Unger, he appeared not to be acknowledging his poor driving which was something Mr. Forsythe expected he should do. To the contrary, Mr.

Forsythe perceived that he was grimacing and staring at him and his family as though irritated they were in the way. This caused Mr. Forsythe to swear and comment to his family about Mr. Unger being a "fucking asshole." Mr. Forsythe then perceived that Mr. Unger accelerated toward him intending to hit him. Mr. Forsythe described Mr. Unger as a "douchebag" to his family and walked over to the driver's side of the Unger vehicle and spat on the driver's window. Mr.

Forsythe believed this ended the matter. [ 13 ] However, as he was walking away with his back turned, his sister verbalized something to the effect of, "Whoa," or, "What are you doing," which made him turn to see what he believed was Mr. Unger quickly taking off his jacket while seated in the car. He said that, based on this action, he believed Mr. Unger was intending to assault him and determined to prevent that occurring by assaulting Mr. Unger. In his mind, the taking off of a jacket is a clear indication of the intent to fight. [ 14 ] He shed his jacket and handed it to his mother who said something to Mr.

Unger about not hurting her son. Mr. Forsythe ran toward Mr. Unger and punched him in the face. He conceded that he did not see Mr. Unger get out of the vehicle and did not look at Mr. Unger before striking him to assess whether there was anything about Mr. Unger's behaviour to indicate he was a threat. The accused did not pause to observe Mr. Unger's pace, gait, posture, where his hands were, or if he was speaking.

[ 15 ] He said that although Mr. Unger fell back to the ground after he punched him, he immediately began to get back up onto his feet. Mr. Forsythe felt it necessary to kick him in the head to ensure he could make his way safely to his sister's car. Mr. Forsythe and all of his family then immediately left the scene. [ 16 ] He concluded that Mr. Unger was a particular threat because he believed him to be Middle Eastern or South Asian in heritage and that people from these cultures "don't fight fair" and "are likely to carry knives to a fight." [ 17 ] Mr. Forsythe has a lengthy criminal record.

I instructed myself to give his record very little weight when assessing his credibility and reliability as it is comprised almost entirely of crimes of violence. I also instructed myself not to consider his past history of violence in assessing whether, on all the evidence, a reasonable doubt that he acted in justifiable self-defence exists. [ 18 ] Mr. Forsythe's evidence was troubling. In particular, he demonstrated a lack of appreciation for the seriousness of his conduct.

His perceptions appeared to be based on a view of our society as one in which physically able adult males pose a potential threat and violence must be the first resort to maintain ones safety. Mr. Forsythe referenced fictional depictions such as movies and television to explain why he reacted as he did. He was particularly demeaning of Mrs. Unger and their teenaged daughter who were understandably extremely emotional about Mr. Unger's welfare as he lay bleeding and nearly unconscious on the ground. I do not accept his evidence of the events as reliable. [ 19 ] Mr.

Alyssa Forzley testified that she noticed the Unger vehicle run the stop sign to the west just as she stepped into the east crosswalk. She believed the Unger vehicle "tried to hit her" and was about to hit her, but stopped two feet away. She said she stopped and looked at the car and then back at her brother who told her he had spat on the car. She then ran out of the crosswalk. [ 20 ] She said Mr. Unger got out of the car and took off his jacket and her brother punched him. Her car was parked immediately to the north of the crosswalk. She said they left the scene because they felt threatened by Mrs.

Unger and the other civilians taking pictures of them. She said she drove the accused home and that they did not speak about the incident. She said she was so upset, she returned to spend the night with her parents and did not discuss the incident with them, either, until the time of the accused's arrest some weeks later. [ 21 ] Alyssa Forzley's evidence does not accord with the events captured on the video. She acknowledged that she was confused by the video. Some of her evidence changed during cross-examination. In particular, she conceded that she did not see Mr.

Unger remove his jacket and only saw his hand in the area of the zipper when he was seated in the car. Some of her observations were unlikely to have been possible in the circumstances, specifically, being able to see what Mr. Unger was doing in the vehicle from where she was standing at the far side of the road. [ 22 ] I do not accept that she took notice of the Unger vehicle when it was at the west crosswalk given her behaviour in the crosswalk.

Furthermore, taking into account the evidence of her mother about what the family did immediately after leaving the scene, I find her recollection was influenced by speaking about the incident with her mother and the accused after the fact. [ 23 ] Mrs. Shana Forzley is the accused's mother. She also said she saw the Unger vehicle go through the stop sign and that it "tried to hit them" while they were approximately a third of the way into the crosswalk. She said the manner in which it approached caused her and her husband to jump and stop.

She said her husband and daughter were behind them and she heard them gasp. She glared at Mr. Unger and kept walking. [ 24 ] The vehicle then lurched forward and stopped and Mr. Unger got out. She described him as being clearly angry and that he was taking off his jacket and dropped it on the driver's seat. Her son punched him and then kicked him in the stomach. [ 25 ] Mrs. Forzley refused to concede many points in her evidence which were inconsistent with the events as captured in the video. I find she prevaricated about whether she saw the Unger vehicle come to a complete stop at the stop sign.

She did not see her son spit on the car or remember her son taking off his jacket and handing it to her before he punched Mr. Unger. [ 26 ] She said that when she walked back toward the Unger vehicle, it was to ensure her son was unhurt, although she did not see Mr. Unger do anything to him. She said they all returned to her home after the fact and discussed the incident in detail. I do not accept Mrs. Forzley's evidence as accurate and find that her recollection has been significantly influenced by speaking with her son about the events. [ 27 ] Mr. Unger is a middle-aged businessman.

The video in conjunction with his testimony demonstrates he is not as strictly observant of the rules of the road as he believes he is. However, this does not detract from his general reliability and credibility as a witness and I accept his evidence. [ 28 ] He and his wife were on their way to a friend's home for dinner having just come from a yoga class. They had stopped to buy dessert at the grocery store. His daughter was to be dropped off at home to study. He had not been paying any attention to the people passing in the intersection other than having stopped to allow them to cross. He had no idea why Mr.

Forsythe walked over and spat on his window. [ 29 ] Although his wife and daughter likely told him not to get out and confront the accused, he did so as he wanted to know why the accused spat on the car. He described himself as incredulous rather than angry. This is inconsistent with the description given by Mr. Emlyn, one of the independent witnesses, and this is the only area of his evidence I do not accept because the action of the accused in spitting on his window was a disgusting affront which would cause nearly everyone's temper to rise. [ 30 ] Mr. Unger does not believe he took off his jacket at that time.

He said that afterward there was blood on the jacket he was wearing, but he was unable to say if that was because he was wearing it or because someone put it on him after the assault. He did not remember taking any steps toward the accused, but he did recall having his hands out at his sides with his palms forward. His demeanour was questioning rather than aggressive. He could not recall saying anything. [ 31 ] Mr. Unger remembers very little thereafter as to the events at the scene. He went to the hospital where his nose was determined to be broken and had to be reset.

He also received 28 sutures to a split to his lip.

[ 32 ] Elena Unger is Mr. Unger's daughter who was in high school. She recalled the man spitting on the window, but had not been paying much attention to her father's driving or to the people in the crosswalk. She heard yelling from outside the car. She described her father as being calm when he got out of the car. She said he never took off his jacket and was wearing it when she attended to him after the assault. [ 33 ] She described her father being punched almost immediately after he got out of the vehicle and then kicked. She said he was simply standing with his hands at his sides with his palms forward.

She recalled several kicks, but was clearly mistaken in that recollection. She also had a different memory of what the accused was wearing. She and her mother went to try and record the plate and take photos of the vehicles the accused and his family were leaving the scene in. I find she was a credible witness who testified truthfully and sincerely to the best of her ability and recollection. [ 34 ] Mrs. Unger testified to the general course of events related by her husband and daughter. All of the witnesses describe her as being highly emotional at the scene and she was also very emotional during her testimony.

It is clear the assault of her husband was a very traumatic experience for her. I find she was truthful and testified to the best of her recollection. However, considering all the evidence, I find her evidence to be unreliable and I cannot give weight to it. [ 35 ] Lynn Wallace was in her car directly behind the Unger vehicle. She said it stopped close to the crosswalk, but she did not see the pedestrians it had stopped for.

She said there was nothing of note about the manner in which the Unger vehicle was being operated. [ 36 ] She then saw a male who appeared to her to be very angry and was yelling something come around the front of the vehicle. She saw this male spit on the window and then saw Mr. Unger get out. She did not see Mr. Unger remove any clothing. She said Mr. Unger had his hands down at waist level with his palms forward and fingers splayed. He was moving slowly and appeared to be "peaceful." [ 37 ] The accused then took off his jacket and lunged at Mr.

Unger punching him in the face and causing him to fall to the ground. She said that Mr. Unger was flat-out on the ground when he was kicked in the head. She described the kick as being of full force and similar to how one would kick a soccer ball. [ 38 ] There were some discrepancies between Ms. Wallace's recollection and the video. She recalled that Mr. Forsythe leaned on the hood before spitting on the window and that Mr. Unger rolled down the window before getting out. She also believed that Mr. Unger had not moved away from his own vehicle.

She was mistaken in these areas of her evidence and conceded to that. [ 39 ] She was otherwise a forthright and honest witness who testified to the best of her recollection and I accept her evidence as reliable. I do not find she has a bias in favour of the Ungers as was suggested. [ 40 ] Robert Emlyn was crossing the same crosswalk behind the accused. His attention was drawn to the incident by the accused yelling about the Unger vehicle not stopping for the crosswalk. He said he did not note anything unusual about how the vehicle was being operated.

He had seen it approach and stop and it had not created any risk to the pedestrians. He said the pedestrians ahead of him cleared the intersection and then the Unger vehicle moved into the crosswalk. The accused turned and yelled and moved towards it and spat on the window. He described Mr. Forsythe as being enraged. [ 41 ] Mr. Emlyn did not see Mr. Unger remove his jacket or glasses. He said that when Mr. Unger got out, he thought there might be a fight. However, Mr. Unger was not behaving as though he intended to fight.

He took a few steps while he kept his hands at his sides and said something to the effect of, "What are you doing" in an angry raised tone. He did not charge Mr. Forsythe. Rather, the accused charged at Mr. Unger and punched him in the face. [ 42 ] There was no defensive reaction at all from Mr. Unger and his hands were still at his sides when he was struck. Mr. Unger landed flat-out, but somewhat on one side. He rolled onto his knees and put one hand on the ground and the accused kicked him in the face. The force of the kick was such that Mr. Emlyn thought Mr.

Unger might have been killed. [ 43 ] There were some inconsistencies between Mr. Emlyn's recollection and the video. In particular, he remembered Mr. Forsythe taking off his jacket after the assault. Otherwise, Mr. Emlyn was an impressive witness who was consistent and forthright and I accept his evidence as accurate and reliable. Findings of Fact [ 44 ] Mr. Forsythe's conclusion that he was in imminent danger from Mr. Unger was based almost entirely on his belief that Mr. Unger removed his jacket as he was getting out of the car.

As can clearly be seen in the video, the only material time the accused looked at what Mr. Unger was doing in the vehicle was when he briefly stared at him after he spat on the window and before turning to walk away. [ 45 ] On his own evidence, he did not see Mr. Unger taking off his jacket at that time or he would have been alerted then that Mr. Unger intended to fight with him. He also conceded that he did not see Mr. Unger get out of the vehicle. He only turned to look when his sister said something. At that point, the video shows Mr. Unger was already out of the vehicle and on his feet. [ 46 ] Mr.

Unger did not take off his jacket once he was out of the vehicle. Thus, Mr. Forsythe could not have seen Mr. Unger taking off his jacket in the vehicle even if he did take off his jacket. I do not accept that Mr. Forsythe or his mother or sister saw Mr. Unger take off his jacket. Rather, I find this recollection is confabulated as a result of Mr. Forsythe telling them he saw that occur. I find as a fact that Mr. Unger did not remove his jacket either before or after he got out of the vehicle. [ 47 ] The defence of self-defence is codified in s. 34 of our Criminal Code .

The relevant provisions state: 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 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. Factors

(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances 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 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 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. [ 48 ] This

section requires the court to apply both a subjective and objective test. I must determine whether the accused held a subjective belief that there would be force used against him and whether that subjective belief was based on reasonable grounds. [ 49 ] Having considered all of the evidence, I find Mr. Forsythe took offence because, in his view, Mr. Unger had stopped his vehicle too close to the crosswalk. I find the perception of a risk of collision with his family was delusory.

Furthermore, there is nothing in the evidence or in accord with common experience to support an inference that a person in a vehicle would intentionally try and strike strangers in a crosswalk in these circumstances. However, the accused and his witnesses alleged that this was Mr. Unger's state of mind. [ 50 ] This unfounded impression caused the accused to become enraged and he reacted by calling Mr. Unger names, swearing, and spitting on the window. I find that he determined to assault Mr. Unger based solely on Mr. Unger's getting out of his vehicle.

I find that to some extent this decision was motivated by racial prejudice. I do not believe that Mr. Forsythe subjectively believed Mr. Unger was a threat to him and the evidence does not give rise to a reasonable doubt in my mind on this issue. [ 51 ] I also do not find that there were any objective grounds to believe Mr. Unger might apply force to the accused. I find, as described by Mr. Emlyn, that Mr. Unger was not behaving aggressively or in any manner which would lead to a belief that he was going to apply force to Mr. Forsythe. Mr. Forsythe failed to make any effort to assess Mr.

Unger's demeanour once he was out of the car. In my view, even if Mr. Unger did remove his jacket while in the car, that single action would not have provided the accused with reasonable grounds to believe Mr. Unger was intending to imminently attack him. [ 52 ] I do not find that Mr. Forsythe's acts were committed for the purpose of defending himself or any member of his family. To the contrary, I find that Mr. Forsythe chose to attack Mr. Unger as he felt disrespected or insulted by him. I also found this perception to have been delusory. [ 53 ] I find the kick to Mr.

Unger's face while he was struggling to get to his feet utterly unwarranted and vicious. [ 54 ] I further find that the assault on Mr. Unger by the accused was not reasonable in the circumstances. Mr. Unger had not charged at the accused or raised his fists or uttered any threats or brandished a weapon. Alyssa Forzley's vehicle was a place of safety to which the accused had immediate resort.

[ 55 ] The accused was much younger and heavier set than Mr. Unger. The accused and Mr. Unger were strangers. There was nothing in the environment or circumstances to heighten any sense of potential risk. The incident occurred in a busy mall parking lot close to various businesses which were still open. [ 56 ] On all the evidence and applying the facts as I have found them and the law, I find the Crown has proved beyond a reasonable doubt that Mr. Forsythe assaulted Mr. Unger and that the assault caused him bodily harm.

I also find the Crown has proved beyond a reasonable doubt that the accused did not act in self-defence. [ 57 ] If you will stand, Mr. Forsythe. [ 58 ] I find you guilty of the offences charged. [REASONS FOR JUDGMENT CONCLUDED]