ASSAULT WITH WEAPON
Accused’s response disproportionate and intended to punish
Accused and complainant experienced conflict during university class. Complainant testified that he was shoved by accused, who also spit gum into his face. Complainant testified that accused followed him outside and asked several times if he wanted to fight. Complainant testified that when he approached accused to talk, accused punched him in face numerous times with closed fist. Complainant testified he was struck in head at least ten times by weapon that was black, baton-like, and extended about three feet. Accused testified that he acted in self-defence. Accused denied using weapon and indicated that complainant’s injuries were caused by ring he was wearing. Accused found guilty. It is questionable that complainant’s injuries were caused solely by accused’s ring. Nature of injuries supported material inference that accused introduced blunt instrument into his struggle with complainant when he lost upper hand. Accused’s assertion that he was merely insulting and immature in class minimized his anger over perceived affront. Accused’s response was disproportionate and intended to punish, and he could not benefit from s. 34(2) or s. 35 of Criminal Code. Court did not have reasonable doubt that accused was aggressor and initiated struggle with punch. Court did not have reasonable doubt that, when challenged, accused resorted to use of blunt instrument and excessive force to overcome challenge to his aggression.
R. v. Sritharathas (May 30, 2012, Ont. C.J., Feldman J.) 101 W.C.B. (2d) 583 (8 pp.).