Two accused appealed their convictions for assault causing bodily harm. Injuries complainant ultimately suffered were significant including lacerated liver, blackened eyes and broken nose. Complainant and his female passenger found themselves in fast food drive through behind car occupied by four males and one female. Complainant apparently became impatient with time that car was taking and words were exchanged. After leaving drive through complainant confronted occupants of other car and trial judge found that soon thereafter those occupants exited their vehicle; trial judge found complainant was quickly overpowered and that all four male occupants of vehicle punched complainant while they knew he was overpowered and continued to punch and kick him while he was on ground. Trial judge found that all involved were under influence of alcohol to some degree. Counsel for one of accused submitted trial judge erred in dismissing accused’s claim of self defence even though he had found that complainant initiated altercation that resulted in ultimate assault. Appeal dismissed. Evidence presented reasonably supported trial judge’s finding that, while complainant unwisely initiated confrontation with four males, and while evidence was unclear as to who made first physical contact, there was no question that complainant was quickly overpowered by choke hold by one of assailants and fell to ground. Based on evidence of independent eyewitnesses, trial judge could reasonably find that even after complainant was overpowered, all four males were observed to be punching complainant. Defence lost any air of reality when trial judge found accused was involved in group assault of overpowered complainant and that accused must have known that complainant was defenceless and overpowered.
R. v. Derochie (Jan. 16, 2013, Ont. S.C.J., de Sousa J., File No. 11-109AP; 11-114AP) 104 W.C.B. (2d) 1172.