



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. McPhee, 2018 ONCA 1016

DATE: 20181212

DOCKET: C61680

Hoy A.C.J.O., Rouleau and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jordan McPhee

Appellant

Michael Lacy, for the appellant

Nancy Dennison, for the respondent

Heard: June 15, 2018

On appeal from the conviction entered by Justice Douglas
    K. Gray of the Superior Court of Justice on May 11, 2015, with reasons reported
    at 2015 ONSC 3001.

Hoy A.C.J.O.:

[1]

On September 12, 2013, the appellant, Jordan McPhee,
    threw a single punch at Kevin Dhillon, his cellmate at the Maplehurst
    Correctional Facility. The punch landed on Dhillons face, beside his left eye,
    and broke his orbital bone. Dhillon required surgery as a result.

[2]

The appellant was convicted of aggravated
    assault, contrary to s. 268 of the
Criminal Code of
    Canada
, R.S.C. 1985, c. C-46
, by maiming Dhillon. He has served the sentence that was imposed.

[3]

The appellant argues that his conviction should
    be vacated and a new trial ordered in accordance with s. 686(5) of the
Criminal
Code
, or, in the alternative, that a conviction for
    the included offence of assault causing bodily harm under s. 267(b) of the
Criminal
Code
should be substituted.

[4]

For the following reasons, I would dismiss the appeal.

I. THE BACKGROUND

[5]

The appellant made home-made alcohol in potato chip bags or garbage bags
    that he kept in his bunk in the cell. The fermenting process attracted fruit
    flies and produced an odour. Dhillon found this disturbing.

[6]

On the day of the incident, around lunchtime, the appellant and Dhillon
    returned to their cell. The appellant and Dhillon recounted different versions
    of what happened after that.

[7]

Dhillon testified that:

·

there were many fruit flies in the cell at that time;

·

he asked the appellant to clean his bunk;

·

Dhillon was sitting on the lower bunk; and

·

without warning, the appellant climbed down the ladder from the
    upper bunk and punched Dhillon in the face.

[8]

The appellant testified that:

·

upon their return to the cell, Dhillon invited him to fight;

·

the appellant came down the ladder from the upper bunk, facing
    inward towards the bunks;

·

he was angry at Dhillon and not afraid of him;

·

Dhillon, who was standing about a foot to a foot and a half away,
    threw the first punch with his right arm and a second with his left;

·

Dhillons punches either did not land or grazed the appellants
    shoulder; and

·

the appellant then came out of a crouch and hit Dhillon, with all
    of his strength, with a right, like a roundhouse punch, where Dhillons left
    eye met his cheekbone, knowing that the bones in that area were very fragile
    and vulnerable.

[9]

It was common ground at trial that the appellant punched Dhillon in the
    face, thereby breaking his orbital bone. The issues at trial were whether the
    defence of self-defence or consent precluded a conviction, and whether what
    occurred constituted maiming as referred to in s. 268 of the
Criminal Code
.

[10]

The
    trial judge concluded that the defence of consent was not available. This
    conclusion is not challenged on this appeal.

[11]

The
    trial judge also concluded that he was satisfied beyond a reasonable doubt that
    none of the three elements of self-defence were present. Thus, the defence of
    self-defence was not available. The appellant challenges this conclusion in
    several respects, which I will discuss further below.

[12]

Finally,
    the trial judge concluded that what had occurred constituted maiming on each
    of what he described as the two possible definitions of that word established
    by the jurisprudence. First, the extent of the damage to Dhillon rendered him
    unable to fight back; and, second, Dhillon lost, to some extent, the ability to
    focus his eyes as a result of his injury.

II. THE ISSUES ON APPEAL

[13]

The appellant argues that:

1.

The trial judge
    erred in his assessment of whether the single punch the appellant threw at
    Dhillon was reasonable in the circumstances (the third element of
    self-defence) pursuant to s. 34(1)(c) of the
Criminal Cod
e
.

2.

The trial judge
    erred in his credibility assessment by:


(a)

approaching his task as a credibility contest;


(b)

failing to consider and weigh the specific and
  inherent frailties in Dhillons evidence, contrary to
R. v. McGown
, 2016
  ONCA 575, 341 C.C.C. (3d) 53; and


(c)

relying on factors that were not capable of
  corroborating the material aspects of Dhillons evidence.

3.

In the alternative, a conviction for the included offence of assault
    causing bodily harm should be substituted. The first definition of maiming
    adopted by the trial judge  whether the bodily harm to Dhillon was to such an
    extent that it rendered him less able to fight back or defend himself  was
    wrong in law. As to the second definition, there was no evidence that Dhillon
    lost the use of some part of his body on a permanent basis.
[14]

The
    second issue  whether the trial judge erred in his credibility assessment in
    any of the ways alleged by the appellant  only arises if I conclude that the
    trial judge erred
in his assessment of whether
    the single punch the appellant threw at Dhillon was reasonable in the
    circumstances. This is so for two reasons.
[15]

First,
    an accused person cannot rely on the defence of self-defence if the Crown
    disproves
any one
of the three elements of self-defence beyond a
    reasonable doubt:
R. v. Cormier
, 2017 NBCA 10, 348 C.C.C. (3d) 97, at
    para. 40.
[1]
The three elements of self-defence are set out in s. 34(1) of the
Criminal
    Code
:
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.
If I conclude that the trial
    judge did not err in his assessment of the third element of self-defence 
i.e.

whether the act committed was reasonable in the circumstances  then the
    defence of self-defence fails. It is not necessary to consider the trial
    judges assessment of any other element.
[16]

Second,
    in contrast with his analysis of the other elements of self-defence, the trial
    judge considered the third element (whether the act committed was reasonable in
    the circumstances), and the factors set out under s. 34(2),
assuming the
    facts as related by the appellant in his testimony were accurate
.
    Therefore, any of the errors that may have occurred in the trial judges
    credibility assessment do not affect his analysis of the third element of
    self-defence.
[17]

In
    these reasons, I ultimately conclude that the trial judge did not err in
    determining, beyond a reasonable doubt, that the punch administered by the
    appellant was not reasonable in the circumstances and therefore that the third
    element of self-defence was absent. Accordingly, the defence of self-defence
    fails. Given this conclusion, it will not be necessary to go on to consider
    whether the trial judge erred in his credibility assessment in the course of
    his analysis of the other two elements of self-defence 
i.e.

(1)
    that the appellant believed on reasonable grounds that there was a threat of
    force being made against him, and (2) that the punch delivered by the appellant
    was for the purpose of defending or protecting himself from the use or threat
    of force.
[18]

Below,
    I first address the trial judges analysis of the third element of self-defence
     whether the act committed by the appellant was reasonable in the
    circumstances  and then turn to the maiming issue.
III.
The Trial
    Judges Analysis of the Third Element of Self-Defence
[19]

Subsection
    34(2) of the
Criminal Code

sets out a non-exhaustive list of
    factors the court is to consider in the course of determining whether the act committed
    was reasonable in the circumstances pursuant to s. 34(1)(c). It provides as
    follows:
(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 persons 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 persons
    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.
[20]

The
    portion of the trial judges reasons in which he analyses the question of
    whether the act committed by the appellant was reasonable in the circumstances
    is at paras. 170 to 176:
[170] In any event, I am satisfied beyond a reasonable doubt
    that the act committed was not reasonable in the circumstances.  In coming to
    that conclusion, I have considered the factors set out in section 34(2) of the
Code
. 
    I have considered those factors assuming the facts as related by Mr. McPhee are
    accurate.
[171] It would not have been reasonable to administer the punch
    delivered by Mr. McPhee having regard to the nature of the threat by Mr.
    Dhillon.  According to Mr. McPhee, Mr. Dhillon had invited conflict, by saying
    do you want to take it to the back? and do you want me to come up there? 
    Mr. McPhee responded, he says, by descending from his bunk.  If there was a threat
    at that stage, he could have simply stayed where he was.  Even after he
    descended, according to him, there was an attempted punch, or two punches, by
    Mr. Dhillon that missed the mark.  It was totally unnecessary in the
    circumstances to deliver a blow that disabled Mr. Dhillon.
[172] There were ample other means available to respond to the
    potential use of force.  As noted, Mr. McPhee could have simply stayed in his
    bunk.  He could have called for help.  He could have just ignored Mr. Dhillon. 
    Even after he descended from his bunk, once Mr. Dhillon missed the mark, he
    could still have called for help or grabbed Mr. Dhillon without punching him.
[173] As noted earlier, Mr. McPhee is taller and heavier than
    Mr. Dhillon.  He would have an advantage in any physical confrontation.
[174] There had been no prior use or threat of force.  While
    there had been some conflict between them, there had been no suggestion of any
    physical confrontation.
[175] The response by Mr. McPhee, if that is what it was, was
    totally out of proportion to Mr. Dhillons ineffectual punches that did not
    land.  As noted earlier, other options were clearly available.
[176] For these reasons, I am satisfied beyond a reasonable
    doubt that the Crown has shown that the defence of self-defence is not
    available.
[21]

The
    appellant argues that the trial judge erred in his analysis of the third
    element of self-defence in the following ways:
1.

by effectively
    imposing a requirement that the appellant wait until he was successfully
    assaulted first before acting, or that he retreat in circumstances where there
    was no real opportunity to do so;
2.

by losing sight
    of the principle that an accused is not required to weigh to a nicety the force
    used in response to the perceived use or threat of force;
3.

by reasoning
    backward from the injury to a finding of excessive force; and
4.

by giving no
    consideration to factors that supported a claim of reasonableness, including
    the following:

a.

the appellant and Dhillon were alone in a locked cell;


b.

the appellant had been told by Dhillon that the reason
  he had been moved to the appellants cell was for fighting with another inmate;


c.

no guards were visible from the cell and there was a
  delay of several minutes after the appellant called for help before any guards
  arrived;


d.

the appellant took no further action beyond the single
  punch and rebuffed Dhillons alleged attempts to continue fighting (once he was
  able to get up again following the appellants punch); and


e.

the appellant was the one who immediately called for
  help once he saw the injury to Dhillon.

[22]

I
    reject these arguments.
[23]

When
    determining whether the act committed was reasonable in the circumstances, s.
    34(2)(b) of the
Criminal Code
required the trial judge to consider
    whether there were other means available to respond to the potential use of
    force. In my view, this is exactly what the trial judge did at para. 172 of
    his reasons.
[24]

Similarly,
    s. 34(2)(g) of the
Criminal Code
required the trial judge to consider
    the nature and proportionality of the persons response to the use or threat
    of force. In doing so, the trial judge did not impose upon the appellant a
    requirement that he weigh the exact measure of necessary defensive action to
    a nicety or hold him to a standard of perfection, contrary to this courts
    decisions in
R. v. Baxter
(1975), 27 C.C.C. (2d) 96 (Ont. C.A.), at p.
    111, and
R. v. Cunha
, 2016 ONCA 491, 337 C.C.C. (3d) 7, at para. 24. Nor
    did the trial judge reason backwards from the injury Dhillon sustained to a
    finding of excessive force.
[25]

As the trial judge recounted, on the appellants version of events,
    the appellant chose to descend from his bunk and engage with Dhillon and then punched
    Dhillon in the left eye area in response to two ineffectual punches that did
    not land. This was not a situation where, in the heat of the moment, an accused
    fails to weigh to a nicety the force he uses in response to the perceived use
    or threat of force. Here, the appellant, who testified he was not afraid of
    Dhillon, chose to engage with Dhillon and then weighed the force that he
    decided to apply in response to Dhillons ineffectual punches. Specifically,
    the appellant testified that he used all his strength to administer the blow,
    and he directed it to where Dhillons left eye met his cheekbone, knowing that
    the bones in that area were very fragile and vulnerable. The trial judge
    assessed proportionality on this basis. In this context, I read the trial
    judges description of the blow at para. 171 as one that disabled [Dhillon]
    as an attempt to reflect the amount of force used, and, therefore, the nature
    of the blow generally, and not as an indication that the trial judge reasoned
    backwards from the consequences of the blow in assessing proportionality.
[26]

In
    conclusion on this first issue, I am of the view that the trial judge did not
    err in his assessment of whether the punch thrown by the appellant was
    reasonable in the circumstances. Thus, the defence of self-defence fails, and it
    is not necessary to go on to consider whether the trial judge erred in his
    credibility assessment.
[27]

I turn next to the maiming issue.
IV.
The Maiming Issue
[28]

Subsection 268(1) of the
Criminal Code
provides
    that:
Every one commits an aggravated
    assault who wounds, maims, disfigures or endangers the life of the complainant.
[29]

The indictment was drafted solely with reference
    to maiming. The appellant was charged that he did maim [Dhillon] thereby
    committing an aggravated assault, contrary to Section 268 of
the Criminal Code of
    Canada
.
[30]

Maim is not defined in the
Criminal Code
.
[31]

Based on his review of
R
.
v. Schultz
(1962), 133 C.C.C. 174 (Alta. S.C.(A.D.)), leave to appeal refused,
    [1962] S.C.R. x, and the cases that have come after it, the trial judge
    concluded that there were two possible definitions of the word maim. He
    wrote, at para. 155:
One contemplates that a
complainant
has lost the use of some part of the body or bodily function, and
    the other is where the assailant causes bodily harm to the victim to such an
    extent that it renders the victim less able to fight back or to defend himself
    or herself. The latter meaning has clearly been established here. The extent of
    damage to [Dhillon] clearly rendered him unable to fight back. However, it has
    also been established that [Dhillon] has lost, to some extent, the ability to
    focus his eyes as result of his injury. That is sufficient to constitute
    maiming; see
R. v. Stehniy
, [2010 ONCA 269].
[32]

To recap, the trial judge applied two
    definitions of maim to the facts in this case. The first definition of maim
    applied by the trial judge requires bodily harm to the victim to such an
    extent that it renders the victim less able to fight back or to defend himself
    or herself. The second definition applied by the trial judge requires the loss
    of the use of some part of the body or bodily function.
[33]

The appellant argues that
Schultz
is the source of
    the first definition of maim applied by the trial judge 
i.e.
bodily harm to the
    victim to such an extent that it renders the victim less able to fight back or
    to defend himself or herself. The appellant submits that
Schultz
was wrongly
    decided, and therefore the first definition of maim applied by the trial
    judge was wrong in law. He argues that if this were the standard for maiming,
    most cases of assault causing bodily harm would be artificially elevated to
    aggravated assault. He submits that the correct standard requires that the
    person lose the use of some part of his or her body, coupled with proof beyond
    a reasonable doubt that the persons loss of the body part or function is, or
    will be, permanent. He argues that the evidence in this case falls well short
    of that standard.
[34]

The respondent submits that the trial judge
    correctly found that there are two possible definitions of the word maim, and
    it was open to him to find that the evidence met both definitions in this case.
    The first definition is satisfied because Dhillon testified that he could not
    do anything physical after the appellant struck him. With respect to the second
    definition, the respondent acknowledges that Dhillon regained his eyesight and
    did not lose the ability to focus his eyes as a result of his injury, and the
    trial judge therefore erred in finding otherwise. However, the respondent
    submits that the second definition applied by the trial judge is satisfied by
    Dhillons testimony that his eye twitches and cannot adjust to sunlight, and
    that, as a consequence of the surgery on his eye, he feels numbness, like some
    sort of pain, on top of his gums, all the time.
[35]

As I will explain, I am satisfied that maiming
    within the meaning of s. 268 of the
Criminal
    Code
is made out in this case.
[36]

Both definitions relied upon by the trial judge
    consider the resultant loss of the use or function of some part of the victims
    body; however, the first definition particularizes the body function that must
    be lost  specifically, the ability to fight back or defend oneself. I agree
    with the appellant that whether or not a victim has been maimed should not turn
    on whether the bodily harm inflicted upon the victim rendered the victim less
    able to fight back or to defend himself or herself.
[37]

Under old English law, a person who had
    been deprived of the use of a body part capable of being used to fight was
    maimed, and was not subject to trial by ordeal. As
one of the texts to which the court in
Schultz
referred at p. 178 of its reasons explains:
The distinction between wound and mayhem was of procedural
    importance. The man who had been maimed, that is, who had been deprived of the
    use of a member which would be serviceable in a fight, was not bound to offer
    or accept battle. In such case one or other of the parties was sent to the
    ordeal, until the Lateran Council of 1215 abolished that mode of trial; in
    later days the appellee had to submit to the verdict of a jury. [Footnotes
    omitted.]
[2]

We are long past the days of trial by
    ordeal. In todays society, there is no sound policy reason to still require
    that the loss of the use or function of some part of the victims body affect
    the victims ability to fight back or defend himself or herself in order to
    constitute maiming. In my view, the second definition applied by the trial
    judge, with its focus on the loss of the use of some body part or some bodily
    function without further qualification on the type of body part or function
    lost, recognizes this. In essence, the second definition is the natural evolution
    or modern adaptation of the first definition.
[38]

Also, unlike the first, fighting-focused
    definition, the second definition works in harmony with s. 268(3) of the
Criminal Code
, which
    provides:
(3) For greater certainty, in this
    section, wounds or maims includes to excise, infibulate or mutilate, in
    whole or in part, the labia majora, labia minora or clitoris of a person,
    except where
(a) a surgical procedure is
    performed, by a person duly qualified by provincial law to practise medicine,
    for the benefit of the physical health of the person or for the purpose of that
    person having normal reproductive functions or normal sexual appearance or
    function; or
(b) the person is at least
    eighteen years of age and there is no resulting bodily harm.
This subsections inclusion of
    maims would not make sense if the meaning of maims was restricted only to
    those injuries affecting the ability to fight back or defend oneself.
[39]

Similarly, the second definition can be easily
    applied to any complainant, including infants. In contrast, the first,
    fighting-focused definition can only be used with those complainants who
    possessed the ability to fight back in the first place.
[40]

Accordingly, I depart from
Schultz
insofar as it
    supports a definition of maiming tied exclusively to the ability to fight
    back or defend oneself.
[41]

That said, I agree with
Schultz
to the extent
    that it recognizes that the loss of the use or function of some part of the
    victims body need not necessarily prove to be permanent in order for maiming
    to be made out. This is because
Schultz
, and the cases that followed it,
[3]
focused on the victims ability to fight back or defend himself or herself in
    the fight in which the injury was sustained, rather than the victims ability
    to do so in future fights. This acknowledgement that permanence is not always required
    also makes sense, given modern medicines increasing ability to correct or
    repair what were once thought to be permanent injuries.
[42]

In this case, it is helpful to consider the
    nature of the injury suffered by Dhillon. The appellants punch to the left
    side of Dhillons face broke Dhillons orbital bone. The nurse at the
    correctional facility who saw Dhillon before he was taken to hospital by
    ambulance described his face as caved in. The doctor who examined Dhillon
    before surgery described the fracture as significantly displaced and
    comminuted. The injury was not transitory. Corrective surgery was required.
    Following surgery to repair the damage, it took about one week before Dhillon
    could eat properly again and about two weeks before he could open his left eye
    and speak normally again. Moreover, even now, Dhillons eye twitches and he
    cannot adjust his eye to the sun. The latter issue affects Dhillon when he is
    driving, because he has to keep his eye down and cannot focus on the road. Even
    when driving at night, when lights are coming right at Dhillon, he has to look
    somewhere else because he cannot visually focus on the light. Dhillon also
    continues to experience pain in his gum area.
[43]

In sum, Dhillon suffered a significant loss of
    the use or function of certain parts of his body  specifically, his left eye
    and mouth. He was maimed and the appellant was properly convicted of aggravated
    assault.
V.
Disposition
[44]

For the reasons above, I would dismiss the appeal.
Released: AH DEC 12 2018
Alexandra Hoy
    A.C.J.O.
I agree. Paul
    Rouleau J.A.
I agree. M.L.
    Benotto J.A.

[1]
I note here that the trial judge erred when he set
    out the elements of self-defence, because it appears that he required the Crown
    to disprove all three elements beyond a reasonable doubt in order to render the
    defence unavailable to the appellant. This error does not affect my analysis of
    the issues on this appeal. The error inured to the appellants benefit at trial
    because it held the Crown to an even higher standard than necessary.
    Nevertheless, the law is clear that the Crown need only disprove beyond a
    reasonable doubt one of the elements of self-defence for this defence to fail.



[2]

See Sir Frederick Pollock and Frederic William
    Maitlands
The History of English Law,
2d ed. (Cambridge, UK: The University Press, 1952)
    vol. 2 at p. 490.


[3]
For example, in
R. v. Litthemane
, 2015 ONCJ 565, at
    para. 74, the preliminary inquiry judge cited
Schultz
to support the
    idea that [m]aim means to injure a person to the extent that they are less
    able to fight. Although the preliminary inquiry judge commented that assault
    causing bodily harm might be the more appropriate charge on the evidence given
    that the complainants injuries involved some degree of bodily harm and not
    much more, he ultimately concluded that there was some evidence that would
    meet the definition of aggravated assault by maiming because, after the
    complainant was hit on the head with a baseball bat during a fight, he was out
    of commission in terms of further involvement. Similarly, in
R. v.
    Armstrong
, 2002 BCSC 1824, at para. 22, the trial judge was
    satisfied that the accused had maimed the first complainant because her
    injuries (a broken arm, two broken ribs and seriously bruised legs and arm)
    resulted in [the complainant] being less able to resist the continued assault
    upon her and less able to defend herself. The trial judge was also satisfied
    that the accused had maimed the second complainant because, although his
    injuries were less severe and did not affect him for as long as those suffered
    by the first complainant, the broken wrist suffered by the second complainant
    rendered [him] less capable of defending himself: at para. 26.
