) ) HER MAJESTY THE QUEEN – v. –, 2013 ONSC 4185

CITATION : R. v. Toenders, 2013 ONSC 4185 COURT FILE NO.: 2622/12 DATE: 20130620 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN – and – Clayton TOENDERS Defendant ) ) ) ) ) ) ) ) A. Bernstein, for the Crown A. Goldkind, for the Defendant ) ) HEARD: June 12 and 13, 2013 REASONS FOR JUDGMENT Ricchetti, J.: THE CHARGES [ 1 ] Mr. Toenders is charged with assaulting a male with a weapon (s. 267(

a) of the Code ) and assaulting a male causing bodily harm (s. 267(

b) of the Code ) on July 13, 2012. [ 2 ] It is clear from the evidence that the male was Mr. Sebastian Houle. THE EVIDENCE HEARD AT TRIAL [ 3 ] The Crown called two witnesses: Mr. Michel Bezeau and Ms. Lindsey Dohey. [ 4 ] The Defence called Mr. Kemar Roberts. [ 5 ] I found Mr. Roberts to have no credibility and his evidence was entirely unreliable for a number of reasons including:

a) Mr. Roberts was a joint participant with Mr. Toenders in the incident which resulted in the assault which is the subject of these charges. Mr. Roberts pled guilty and has served his sentence arising from this incident. He faces no further repercussions regardless of what he testifies to at this trial;

b) Mr. Roberts is a good friend of Mr. Toenders. His evidence is clearly biased and untruthful in an attempt to help his friend;

c) Mr. Roberts, while being a young man, has an extensive criminal record which includes many convictions for crimes of dishonesty;

d) Mr. Roberts' evidence at this trial was substantially different than what he told the police on the night of the incident and substantially different than what he admitted to this court during his guilty plea. His "new" evidence as to what occurred is clearly to help Mr. Toenders in his defence;

e) Mr. Roberts is prepared to lie whenever it suits him and he virtually said so during his evidence;

f) Mr. Roberts’ evidence was inconsistent and varied on significant points from one part of his testimony to another. At other times, when pressed on significant points on which his evidence should have been clear, Mr. Roberts was vague; and

g) Mr. Roberts was entirely uncooperative during cross-examination and was required to be told to answer the question on several occasions. [ 6 ] Ms. Dohey's evidence was generally credible and reliable notwithstanding that she was and continues to be Mr. Roberts’

girlfriend. It was apparent that, when it came to Mr. Roberts’ involvement in the incident, her evidence was not reliable as she was clearly attempting to minimize Mr. Roberts' involvement in the incident. [ 7 ] Mr. Bezeau's evidence was entirely credible and reliable. He had no interest in the issue to be tried. He was one of the victims but was not the person assaulted. It was clear that he did not want to be involved in this matter. However, when he testified, his evidence was, in my view, truthful and complete to the best of his recollection. The Defence submits that Mr.

Bezeau's evidence was not reliable because, during the trial he said that he saw three assaults with the broomstick by Mr. Toenders but had previously said that he had seen two assaults. I find this difference to be of no significance. Mr. Bezeau, at the time Mr. Houle was assaulted, had a knife to his throat. It is understandable for there to be such a minor inconsistency in these circumstances. The Issue [ 8 ] The only issue raised by the Defence is whether there is a reasonable doubt that Mr. Toenders assault on Mr. Houle was in self-defence. There is no issue that Mr. Toenders hit Mr.

Houle over the head, on at least one occasion, with a broomstick handle which broke during the assault and that Mr. Houle started to bleed. The Defence concedes that such an assault would constitute an assault causing bodily harm. THE FACTS [ 9 ] Mr. Bezeau was just starting a construction job in the Peel area. He knew Mr. Houle from previous construction projects on which the two of them had worked. It was suggested that Mr. Bezeau, while at this job, reside at a room in "Kimberly's" house at 33a English Street in Brampton. Kimberly was someone Mr. Houle was involved with and where Mr. Houle apparently resided.

Kimberly rented rooms to persons at this address. [ 10 ] Mr. Bezeau went to Kimberly's home on the afternoon of July 13, 2012. He met Kimberly and agreed he would reside there. There was also another unidentified male also staying at Kimberly's home. Mr. Houle was also staying at Kimberly’s home on July 13, 2012. [ 11 ] Sometime after Mr. Bezeau arrived, Kimberly left. Mr. Bezeau and the other male decided to have a few beers and watch television. Mr. Houle went to sleep in his room. [ 12 ] On July 13, 2012, the same day, Mr. Toenders, Mr. Roberts and Ms. Dohey had been drinking that afternoon. At some point, Mr.

Toenders and Mr. Roberts decided they would go to Kimberly's home to collect some money she owed them. Ms. Dohey decided to go along. [ 13 ] When Mr. Toenders and Mr. Roberts arrived, they found that Kimberly was not home. They found Mr. Bezeau and the other male sitting watching television. Mr. Toenders and Mr. Roberts wanted to be paid immediately. As expected, the men said that it had nothing to do with them and to leave. Mr. Roberts decided to get a knife or knives and Mr. Roberts a broom stick from the kitchen at Kimberly’s home. [ 14 ] Mr. Houle was taken out of his bedroom. Mr.

Houle was wearing only boxer shorts. Mr. Houle was taken into the living room and sat down in one of the chairs. [ 15 ] At some point, Ms. Dohey arrived and observed what was going on in the living room. [ 16 ] As a result, Mr. Houle, Mr. Bezeau and the other male were sitting down in the living room and Mr. Roberts had a knife or knives and Mr. Toenders was holding a broom stick handle. They demanded the money from the three men. The three men said they knew nothing about the money and again told Mr. Roberts and Mr. Toenders to leave. This did not satisfy Mr. Roberts and Mr.

Toenders, they wanted their money and they did not care from whom they got the money from. This went on for a few minutes. Finally, Mr. Roberts and Mr. Toenders told the three men to empty their pockets. [ 17 ] Mr. Roberts held a knife to Mr. Bezeau’s neck. Mr. Bezeau complied and gave up his wallet. [ 18 ] Mr. Toenders, still holding the broom stick, asked Mr. Houle for his money. Mr. Houle, wearing only his boxer shorts, did not give Mr. Toenders any money and likely made some comment to Mr. Toenders. [ 19 ] Whatever was said between Mr. Toenders and Mr. Houle, Mr. Toenders hit Mr.

Houle over the head with the broom stick at least twice, causing Mr. Houle to start to bleed from his head. The broomstick broke into two pieces. [ 20 ] Ms. Dohey was in the kitchen watching what was going on. [ 21 ] Someone had called 911. The police arrived while the assault was ongoing or shortly thereafter. Mr. Toenders and Mr. Roberts saw this and left quickly through the back door. The police were able to recover the knife Mr. Roberts used and the broken broomstick Mr. Toenders had used. [ 22 ] Mr. Bezeau’s wallet was never recovered. [ 23 ] While the Defence cross-examined Mr. Bezeau and Ms.

Dohey suggesting that Mr. Houle had a pocket knife or was being aggressive to Mr. Toenders, neither of these witnesses accepted this version of events. Mr. Bezeau stated that Mr. Houle was awoken from his sleep wearing just boxer shorts. Mr. Bezeau never saw a pocket knife in the possession of Mr. Houle. Mr. Bezeau never saw Mr. Houle try to stand up or try to strike Mr. Toenders. Ms. Dohey testified she never saw Mr. Houle have a pocket knife (she testified

she would have seen it if he did have a knife) and never saw Mr. Houle being aggressive to Mr. Toenders. There is simply no credibleevidence that Mr. Houle had any kind of weapon or that he resisted or was threatening to Mr. Toenders. [24] The only evidence of self defence comes from Mr. Roberts who testified that he saw Mr. Houle with a pocket knife andheard Mr. Toenders tell Mr. Houle to drop the knife on three occasions before Mr. Toenders hit Mr. Houle over the head with the broomstick. This is the first time that Mr. Roberts has referred to Mr. Houle as having a pocket knife.

He did not say anything about the pocketknife to the police during his statement the night of the incident and did not say anything about a pocket knife during his guilty plea.During the guilty plea, the only knife or knives mentioned were those being held by Mr. Roberts to Mr. Bezeau’s neck. Mr. Robertscould not even describe the pocket knife which he now says Mr. Houle had until it was suggested to him it was like a Swiss army knife. Even Mr. Roberts' girlfriend testified Mr. Houle had no pocket knife or took any aggressive action to Mr. Toenders. Mr. Bezeau testifiedhe never saw a pocket knife. [25] Mr.

Houle had just awoken from his sleep wearing only boxer shorts. There is no explanation as to where he would havegotten a pocket knife. [26] For the reasons set out above, I do not accept Mr. Roberts' evidence with respect to the existence of the pocket knife orthat Mr. Toenders was defending himself from Mr. Houle when he committed the assault. ANALYSIS [27] As I said above, the only issue is whether there is a reasonable doubt that Mr. Toenders was defending himself. I willproceed on the basis that self-defence is an available defence in the circumstances of this case where Mr.

Toenders was the aggressor,committing an offence and there was nothing preventing him from simply leaving Kimberly’s home when he found that Kimberly wasnot home and the men refused to pay her debt. [28] Having found that Mr. Houle did not have a pocket knife or make any aggressive motion to Mr. Toenders, Mr. Roberts'evidence does not leave me with any reasonable doubt that Mr. Toenders’ assault was committed to defend himself from either a pocketknife or any aggressive action on the part of Mr. Houle.

There is simply no basis upon which to find the essential elements of self-defence exist in this case: 93 In Pétel, supra, at p. 12, Lamer C.J. stated the three constitutive elements of self-defence under s. 34(2): "(1) the existence of anunlawful assault; (2) a reasonable apprehension of a risk of death or grievous bodily harm; and (3) a reasonable belief that it is notpossible to preserve oneself from harm except by killing the adversary". All three of these elements must be established in order for thedefence to succeed. The air of reality test must therefore be applied to each of the three elements.

If any of these elements lacks an air ofreality, the defence should [page53] not be put to the jury. See Hebert, supra; Latimer, supra. 94 Each of the three elements under s. 34(2) has both a subjective and an objective component. The accused's perception of thesituation is the "subjective" part of the test. However, the accused's belief must also be reasonable on the basis of the situation heperceives. This is the objective part of the test. Section 34(2) makes the reasonableness requirement explicit in relation to the second andthird conditions.

Pétel held that the same standard applies to the first component of the defence, namely, the existence of an assault. Withrespect to each of the three elements, the approach is first to inquire about the subjective perceptions of the accused, and then to askwhether those perceptions were objectively reasonable in the circumstances. 95 The air of reality analysis must be applied to each component of the defence, both subjective and objective.

Evidence capable ofsupporting a particular finding of fact with respect to one component of the defence will not necessarily be capable of supporting othercomponents of the defence. In the case of a defence of self-defence under s. 34(2), the testimony of the accused as to his perceptionsdoes not necessarily constitute evidence reasonably capable of supporting the conclusion that the perception was reasonable. See R. v. Cinous, 2002 SCC 29 , [2002] 2 S.C.R.3 [29] There is simply no credible evidence that Mr. Toenders was defending or needed to defend himself from Mr. Houle.

Inother words, to use the language in the current s. 34 of the Code, there was neither any credible evidence of a perception of force or athreat of force against Mr. Toenders or a defensive purpose to Mr. Toenders’ action. There is no air of reality to the defence raised. [30] Let me deal with one last issue raised by the Defence. The Defence submits that, as Mr. Houle did not testify, there is areasonable doubt as to the self-defence. I do not accept this submission. There is no requirement that Mr. Houle testify. There is noneed for Mr.

Houle to given evidence denying that he had a pocket knife or deny that he was aggressive to Mr. Toenders in light of theevidence of Mr. Bezeau and Ms. Dohey. [31] I am satisfied that the Crown has established, beyond a reasonable doubt, that Mr. Toenders committed an assault with thebroom stick on Mr. Houle and an assault causing bodily harm to Mr. Houle. The clear evidence is that Mr. Toenders, whether becausehe was drunk or because he was angry at what Mr. Houle said, or a combination of both, decided to hit Mr. Houle over the head with thebroomstick hard enough for it to break and to cause Mr. Houle to bleed.

CONCLUSION [32] Mr. Toenders is guilty on both counts. Ricchetti, J.

Released: June 20, 2013 CITATION : R. v. Toenders, 2013 ONSC 4185 COURT FILE NO.: 2622/12 DATE: 20130620 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – Clayton TOENDERS REASONS FOR JUDGMENT Ricchetti J. Released: June 20, 2013