OVERVIEW

[1]               On the evening of June 25th, 2018, the accused and his wife went to Cinéma L’Amour, a pornographic movie theatre in Montreal.  Sexual activity took place between the couple in the presence of several men who were patrons of the establishment, and who watched the scene or participated.

[2]               Juan Hernandez Cortez was a participant in the sexual activity. When Mr. Cortez attempted to engage in intercourse with the woman, the accused refused and a scuffle ensued.

[3]               A physical altercation took place between both men in the presence of onlookers, and one of the bystanders tried to separate them. At that time, the accused punched Mr. Cortez in the face. Sometime during the quarrel, Mr. Cortez fell back and hit his head.  This rendered him unconscious, and he never recovered.  He died in hospital two weeks later.

[4]               As a result, the accused stands charged with one count of manslaughter contrary to sections 234 and 236 (b) of the Criminal Code.

[5]               At the heart of the present matter is whether the accused acted in self-defence.

CONTEXT

The prosecution’s evidence

[6]               Cinéma L’Amour is an adult movie theatre where there is a tolerance for sexual activity so long as the interactions are discrete and respectful.  There are no rules but violence and fighting are not acceptable.  Some guests like to watch the sex acts as they occur, others like to participate.  A portion of the visitors like to do both.

[7]               C. N. was at the theatre on the evening of the altercation.  He was sitting towards the front of the room near the movie screen and he noticed that a couple had walked in. It was the accused and his wife.  The woman went to the ladies room and the accused went to the right hand side of the back wall of the cinema.  That back wall is painted black. 

[8]               He saw the woman exit the bathroom and walk towards the back of the cinema to meet the accused.  Mr. N. noticed a group of approximately ten men gather around the couple so he got up from his seat and walked towards them.  When he was closer to them, he saw the woman fellate the accused as she was crouched on her knees. She faced the black wall, and her back faced the movie screen.[1]  At a certain point, Mr. N. touched the woman’s breast and noticed that she was masturbating one of the onlookers as she fellated the accused.

[9]               When Mr. N. was to the left of the couple at a distance of three to four feet, the woman ceased fellating the accused and turned to face the movie screen so that the accused could penetrate her from behind.  The woman’s hands were leaning against the back of one of the theatre seats.

[10]           Mr. N. saw Mr. Cortez who was also to the left of the couple, near the accused along the wall. Mr. Cortez was almost shoulder to shoulder with the accused, and he put his hands on the woman’s pelvis in order to pull her towards him but he did not succeed in doing so since the accused said no to him.  Mr. Cortez tried to pull her towards him a second time and the accused refused again.  Mr. Cortez pushed the accused lightly on the left shoulder and he responded by lightly pushing Mr. Cortez’s shoulder. 

[11]           Mr. Cortez pushed the accused a second time on the left shoulder.  This push was stronger and more intense.  The accused replied by punching him lightly on the right side of the face with his left hand.  The punch was not hard since Mr. Cortez remained unshaken.  Mr. Cortez replied by punching the accused lightly in the face with his right hand.

[12]           In all, the accused punched Mr. Cortez twice and Mr. Cortez did the same.  The four punches were exchanged in a delay of twenty seconds.  As this was happening, the men who had previously surrounded the couple stopped the altercation.  The wife did not move and maintained the same position as if nothing was happening around her.

[13]           Mr. N. thought that the altercation was over when he saw Mr. Cortez start to walk down the central aisle of the theatre towards the screen. Mr. N. walked towards the back of the cinema and went behind the black wall.  Approximately 30 seconds later, he heard a noise like something had fallen. People in the cinema were saying “eh, eh, eh” and when he bent over to peek into the alley, he saw Mr. Cortez lying on the ground.

[14]           Mr. N. remained in the back part of the theatre and saw the accused walking in the direction of the back of the cinema.  He was in the central aisle between Mr. Cortez and the starting point of the altercation.

[15]           Mr. N. immediately exited the theatre through the door that is situated to the left of the movie screen that leads to St-Dominique Street.

[16]           S. T. was also at the theatre.  When he arrived, he noticed Mr. Cortez talking to the cashier in Spanish.  His sentences were broken and he smelt of alcohol. After staying at the theatre for a few hours, he decided to leave.  When he exited, he noticed a couple entering so he decided to go back in.  The accused and his wife are the couple in question.

[17]           The Court’s understanding of Mr. T.’s testimony is that he returned to the theatre because he hoped that the couple would engage in some sort of sexual activity.

[18]           It was dark and loud in the theatre and a pornographic movie was on the screen. Mr. T. sat in the middle of the left side of the theatre and the couple was behind him.  He went to the bathroom and when he came back, he saw the accused standing against the left back wall of the theatre[2] and his wife was coming out of the ladies room.  When the couple reunited, he noticed some men approaching them.

[19]           In turn, Mr. T. joined the crowd and noticed that the woman was fellating the accused as well as other men who were present.  The accused’s back was against the wall and the woman had her back to the movie screen. Mr. T. masturbated himself and then got close to the couple. The female smiled at him and he touched her breast without asking for permission since several other men were touching her at the same time.

[20]           He lowered his pants and was masturbated by the accused’s wife[3] while the eight men who surrounded them watched. Then, he asked the accused if he could have sexual intercourse with her. He refused. The accused was very nice and friendly with Mr. T..

[21]           Mr. T. is a repeat customer of the theatre and in his experience, every couple reacts differently when it comes to others joining them in the sexual activity. 

[22]           When the woman masturbated him, he did not ejaculate.  The accused and his wife were in a tight spot since there was a distance of two to three feet between the back wall and the first row of seats and several men were stuck to the woman. Mr. T. noticed that she had semen on her face and he left the scene to go to the bathroom.

[23]           When he exited the bathroom, he went to the left of the couple at a distance of approximately two meters and noticed them having sexual intercourse. At this time, the accused still had his back against the wall and the woman was bent over facing the screen.  The accused penetrated her from behind, his pants were down to his ankles and her pants were at mid-thigh.  The couple was surrounded by approximately five men.

[24]           As Mr. T. watched the scene, he touched the woman’s buttocks and noticed that Mr. Cortez was very close to the couple. The accused said something vulgar to Mr. Cortez like motherfucker and told him to back off.

[25]           The accused pushed Mr. Cortez on the left shoulder to get him to move away and some of the men in the crowd were telling them not to bicker.  The push was not a hard one.

[26]           The accused seemed angry at Mr. Cortez. The men were one to two feet apart and Mr. T. separated them. At that moment, Mr. Cortez walked towards the centre aisle to the left of the couple. Mr. T. does not know why the men began to argue in the first place.

[27]           From that point onward, Mr. T. is not certain of what happened.  Perhaps there was more quarrelling between the men that he did not see but he did observe that Mr. Cortez advanced towards the accused which caused Mr. T. to withdraw from the scene.

[28]           The accused was in the aisle between the first and second row very close to the benches. From his peripheral vision, Mr. T. saw the accused give a good punch to Mr. Cortez without swinging. There was a banging noise and Mr. Cortez tumbled over the movie seats. The incident happened very quickly and he described it like a flash. There was a ten second delay between the moment that Mr. T. separated the men and the punch to Mr. Cortez.

[29]           The theatre’s floor is sloped and Mr. Cortez was immobile with his head in the space under one of the seats.  Everyone left the premises except for Mr. T..

[30]           Mr. T. went to see Mr. Cortez and he was not moving.  Emergency services were called to the scene and the lights were turned on in the theatre.  At a certain point, Mr. Cortez made a snoring sound and his head shook. Mr. T. checked his pulse and it was very weak.

[31]           As Mr. Cortez lay on the ground, his penis stuck out of his pants. In order to preserve Mr. Cortez’s dignity, Mr. T. pulled up his zipper before the arrival of the first responders.

[32]           Mr. T. washed his hands since there was blood on them from Mr. Cortez’s neck and gave his statement to the authorities.

[33]           When the police arrived at the scene, they saw Mr. Cortez lying on the ground between the third and fourth row of seats.[4] Pictures[5] were taken and material evidence was gathered by Officer Ian St‑Laurent a few hours after the incident.

[34]           The surveillance cameras show that the accused and his wife entered the premises[6] on June 25, 2018 at approximately 10:08 pm[7] and they exited the location[8] around 10:29 pm.[9]

[35]           The autopsy performed on Mr. Cortez revealed the presence of a partially healed wound on top of the head as well as fractures to the right zygomatic and temporal bones.  The point of impact was on the right cheek, there was severe damage to the brain and a residual subdural hemorrhage which is compatible with a fall.

[36]           The death is attributable to blunt force trauma to the head.[10]  This type of trauma is caused by blunt objects that are free of sharp or pointed features.  A blunt object can be a part of the body such as a fist or a foot or it can be a surface like a floor, a wall or a table.  It can also be an actual object like a baseball bat, a metal bar or a hammer.[11] The laboratory results of Mr. Cortez show that his alcohol level was at 260 mg per 100 ml of blood.[12] 

The post-offence conduct

[37]           Three days after the incident at about 10:45 am[13], Steven Koltai, the owner of the cinema, was on site and received a visit from the accused who seemed very concerned about Mr. Cortez.  The accused asked him about the state of Mr. Cortez and the owner told him that he was in a coma.  Mr. Koltai also told him that he should turn himself in but the accused said that he was not ready.  Mr. Koltai gave him the telephone number of the detective.  The accused asked the owner for the police report but he did not give it to him.

[38]           Mr. Koltai was told by the accused that Mr. Cortez had approached him and that he brushed him off.  When Mr. Cortez went to him again, the accused slapped or smacked him in the head and he fell back.

[39]           The accused asked the owner if he would be allowed back into the establishment with his wife in the future.

The defence evidence

Evidence on the Scopellitti Application

[40]           At trial, the defence presented three witnesses in support of an Application to be permitted to lead evidence of Mr. Cortez’s disposition for violent behaviour. This motion is commonly referred to as a Scopelliti Application.

[41]           Nadia Mueco was working at the cinema on June 25th, 2018 as a cashier and administrator. At about 3 pm, her colleague Eva advised her that two men were fighting in the cinema. Ms. Mueco did not see the fight but she saw J. P. positioned on top of Mr. Cortez and pinning him down. Mr. P.’s shirt was torn and he asked her to call the police.

[42]           Later that evening, Mr. Cortez returned to the movie theatre and he smelled like alcohol.  She told him to go home and to come back the next day but he stayed anyway and he apologized for what had happened earlier that afternoon.

[43]           Eva Brogyai was working with Ms. Mueco during the afternoon of June 25th, 2018.  At about 4 pm, she was advised by a patron that there was a fight involving two habitual clients in the vicinity of the women’s bathroom.

[44]           She went inside the ladies room and saw that Mr. P. was upset, his shirt was ripped and he was on top of Mr. Cortez. Mr. P. wanted to file charges against Mr. Cortez. According to Ms. Brogyai, Mr. P. had a tendency of complaining when patrons smoked in the venue.

[45]           Mr. P. stated to the Court that he was on his way to the lobby of the cinema to get some water and he encountered Mr. Cortez who was smoking in the corridor of the theatre next to the bathrooms.  He told Mr. Cortez that it was forbidden to smoke. Mr. Cortez was aggressive and intoxicated by alcohol or drugs. He started to insult Mr. P. and tried to hit him.

[46]           Mr. P. grabbed his hand and Mr. Cortez tore his shirt.  During the scuffle, Mr. Cortez fell to his knees.

[47]           Mr. P. asked the cashier to call the police and when they arrived, Mr. Cortez had already left.  He decided not to file charges.

The accused’s testimony

[48]           On June 25th, 2018, he went to Cinéma L’amour with his wife. He entered the theatre and leaned on the back black wall while she went to the bathroom. 

[49]           Their sexual adventure began when she returned from the bathroom and got down to her knees to fellate the accused.  She faced the accused and had her back to the screen.

[50]           As soon as she began fellating him, a large group of people surrounded the couple in a very tight cluster. The accused was asked if he and the woman were married and as soon as he confirmed that they were, he felt a greater sense of respect from the onlookers. The patrons made the couple feel comfortable.

[51]           Some of the men asked if they could touch his wife.  She was fully clothed and some people touched her back and her chest. Some of the men had their genitals exposed, masturbated and hoped to get involved somehow in the sexual activity that was taking place.

[52]           When Mr. T. came closer to the couple with his genitals out, she agreed to masturbate and fellate him.  She also masturbated some of the other men.  When Mr. T. asked to have sexual intercourse with her, she refused and the accused told him no with a smile, and he accepted this response. The interactions were friendly and the woman continued to fellate Mr. T..

[53]           When Mr. T.’s fellatio ended, Mr. Cortez stumbled towards the couple in a dominant fashion, acting abrasively and pushing people aside.  While most of the men who surrounded the couple were sensitive, Mr. Cortez seemed like an alpha dog with his genitals out.  The accused nodded his head in approval towards his wife and she started to perform oral sex on Mr. Cortez.  This did not last long since Mr. Cortez was disrespectful of the woman by grabbing her head and ramming it towards his pelvis which is contrary to the behaviour of the other men who put their hands on their hips and let things happen naturally.

[54]           The accused’s wife immediately ceased fellating him and turned to the accused to perform oral sex on him.  The accused’s state of mind was still positive despite the behaviour of Mr. Cortez, and he had sexual intercourse with his wife further to this.  The woman lowered her pants, turned around and leaned over to grab the top of the seat as the accused penetrated her doggy style with his knees bent and spread, and his pants to the floor.  There was very little space near the couple since the area where they were positioned was cluttered.

[55]           Mr. Cortez came back to the couple and told the accused that he wanted to have sex.  As the accused continued to penetrate his wife, he told Mr. Cortez that he could not.  With his penis exposed, Mr. Cortez disregarded the accused’s refusal by putting his hands on the woman’s waist to try to pull her to him.

[56]           Mr. Cortez bumped the accused who reacted by pushing him back with his shoulder like at a mini hockey match.  The accused told him “no fucking, no sex”.  After the accused uttered those words, Mr. Cortez came back and grabbed his wife more forcefully, once again disregarding the refusal.  Mr. Cortez body checked the accused harder while he pursued intercourse with the woman.

[57]           The accused told Mr. Cortez to get the fuck away and that there will be no fucking as he held his wife with one hand and pushed Mr. Cortez in the face with the other hand.  Mr. T. was present during these exchanges and tried to calm things down by putting his hand between the two men.

[58]           At this point, the accused wanted to leave since he no longer wished to pursue having sexual intercourse with his wife due to the behaviour of Mr. Cortez. When Mr. T. tried to separate the men, Mr. Cortez attempted to reach the accused again but was blocked.  When the accused started to pull out of his wife, Mr. Cortez hit him on the side of the head with a closed fist.  Mr. Cortez was very angry and had an evil look in his eyes.

[59]           At this point, the accused had completely exited his wife but his pants were still down.  The accused asked Mr. Cortez why he hit him and as he uttered those words, Mr. Cortez stepped back, clenched his fist and bounced like a boxer.

[60]           The accused became nervous when he saw Mr. Cortez behave this way since he believed that he was going to get punched again.  His mind was racing and he was fearful that if he were to be knocked out, his wife would be sexually assaulted by Mr. Cortez since she was still bent forward and unaware of what was going on around her.

[61]           As Mr. Cortez pounced towards the accused, he felt unable to go anywhere since his pants were down, his wife was still there, and there was a wall behind him. The accused felt desperate so he leaned over and delivered a roundhouse punch to Mr. Cortez with his left hand while holding his pants with his right hand. 

[62]           Once the accused had swung at Mr. Cortez, Mr. T. tried to separate the men and his arm caused Mr. Cortez to fall to the ground. When this happened, the accused lifted up his pants, took his wife and exited the establishment.

ISSUES

[63]           Are the post-offence conduct and disposition evidence admissible, and if so, what is their probative value on the merits?

[64]           Did the accused commit an unlawful act by punching Mr. Cortez?

[65]           If so, did the accused act in self-defence?

[66]           The credibility of all the witnesses must be assessed in determining whether the accused committed an unlawful act and whether self-defence applies.

ANALYSIS

1. THE LAW

1.1  Post-offence conduct

[67]           Actions taken by an accused person after a crime has been committed can, under certain circumstances, provide circumstantial evidence of his culpability for that crime.[14]  When post-offence conduct is considered within the scope of the entirety of the evidence, this behaviour can be used to impugn the accused’s credibility[15] or to discredit a defence relating to his state of mind at the time of the offence.[16]

[68]           The relevance and probative value of evidence of after-the-fact conduct is evaluated on a case-by-case basis.  In some cases, it may be highly incriminating, while in other cases, it might play only a minor corroborative role.[17]

[69]           The test for the admission of evidence is first focused on relevance, and the tendency of the evidence, as a matter of logic, common sense and human experience, to make the proposition for which it is advanced more likely than that proposition would be in the absence of that evidence.  After-the-fact conduct, when admitted, simply adds that piece of evidence as a building block in the Crown or defence case.  It is at the end of the case, when all the evidence has been heard, that the Court is required to determine what weight, if any, will be placed on this evidence.[18]

1.2  Scopelliti Application

[70]           In R. v Scopelliti[19], the Ontario Court of Appeal set out the general principles as to disposition evidence.  In the interest of fairness, the accused should be provided with the benefit of any evidence that may be relevant in casting doubt on whether he committed the offence with which he is charged.  When self-defence is raised, evidence of previous acts of violence by Mr. Cortez which are unknown to the accused may be admitted in order to assist the trier of fact in arriving at a just verdict with respect to the accused’s claim of self-defence.  To exclude such evidence which is relevant to prove the innocence of the accused would not be in the interests of justice.[20]

[71]           The lawyers asked the Court not to render interim judgments regarding the disposition evidence and Scopelliti Application but to include the decisions on their admissibility in the final judgment. The Court acquiesced to their request.

1.3  Manslaughter

[72]           The actus reus of unlawful act manslaughter is satisfied by proof beyond a reasonable doubt that the accused committed an unlawful act that caused death. The underlying unlawful act is the predicate offence. The fault element of unlawful act manslaughter is the objective foreseeability of the risk of bodily harm that is neither trivial nor transitory, coupled with the fault element for the predicate offence.[21]

1.4  Self-defence

[73]           At trial, the accused submitted that he acted in self-defence when he punched Mr. Cortez.  Section 34 of the Criminal Code governs the three criteria that must be met in order for the defence to apply. (1) The accused must reasonably believe that force or a threat of force is being used against him or someone else (the catalyst). (2) The subjective purpose for responding to the threat must be to protect oneself or others (the motive). (3) The accused’s act must be reasonable in the circumstances (the response) and the Criminal Code underlines nine non-exhaustive factors that should be considered during the evaluation of the reasonableness of the accused’s act.[22]

[74]           The first element takes into consideration the accused’s state of mind and the perception of events that led him to act. Their belief must be held on reasonable grounds and if the accused does not hold a subjective belief that force or a threat of force was being used against his person or that of another, the defence is not available.[23] The Court must assess the danger that the accused is facing which is evaluated by taking into account a combination of objective and subjective components[24] such as the context and his previous experiences.[25] An erroneous perception of the threat by the accused is acceptable so long as it is reasonable.[26]

[75]           The second element examines the accused’s personal purpose in committing the act that constitutes the offence.  This is a subjective inquiry and the act of the accused needs to be undertaken in order to defend or protect himself or others from the use or threat of force. The purpose for acting may evolve as an incident progresses or escalates.[27]

[76]           The last element requires the Court to consider whether the accused’s response to the use or threat of force was reasonable in the circumstances. This is done by evaluating the reasonableness of the accused’s actions, not his mental state, and involves the perspective of a reasonable person with some of his qualities and experiences.[28]

[77]           In considering whether or not the acts committed by the person defending himself from the use or threatened use of force against him is reasonable, the judge must bear in mind that people placed in stressful and dangerous situations do not have the luxury of in-depth reflection and will inevitably make errors of judgment and fact, such as in assessing the force required to counter the threat. Their actions should not be judged against a standard of perfection.[29]

2.  APPLICATION OF THE LAW TO THE FACTS

2.1  Are the post-offence conduct and disposition evidence admissible, and if so, what is their probative value on the merits?

[78]           The prosecution submits that the following elements are admissible as post-offence conduct:

• He went back to the establishment three days after the fact in order to inquire about the state of Mr. Cortez;
• The owner told him that Mr. Cortez was in a coma;
• The owner told him to turn himself in to police and gave him the telephone number of the detective;
• The accused told the owner that he was not ready to turn himself in;
• The owner was told by the accused that he was approached by Mr. Cortez and that he brushed him off. The accused slapped or smacked Mr. Cortez in the head when he went to him again and he fell back;
• The accused asked the owner if he would be allowed back into the establishment with his wife in the future.

[79]           The Court deems that this evidence is admissible as post-offence conduct.  There is a certain relevancy that is attached to this evidence since the accused returned to the premises a few days after the altercation to inquire about the health of Mr. Cortez and whether he could return to the establishment in the future. If the accused felt the need to return to the location to discuss these issues with the owner, one can infer that it is because he felt as if he had acted wrongly by punching Mr. Cortez.

[80]           However, when the purported post-offence conduct is evaluated within the scope of the evidence as a whole[30], there is nothing that transpired from the visit of the accused with Mr. Koltai at the establishment a few days after the events in question that could enable the Court to: (1) draw inferences as to his guilt or (2) minimize his credibility as to whether he acted in self-defence.[31]

[81]           Therefore, the Court gives very little weight to this evidence. In his testimony, the accused confirmed the essence of what the owner stated to the Court as well as the fact that he struck Mr. Cortez. Moreover, the evidence of post-offence conduct was not a predominant feature of the accused’s trial since the case was mostly about the circumstances of the events that took place at the movie theatre, not what occurred when the accused returned to the theatre to speak with the owner.

[82]           As for the defence’s Scopelliti Application, the Court concludes that the evidence heard on the voir dire is relevant and admissible to support the position that Mr. Cortez was the aggressor.  There is a close temporal link between the disposition evidence pertaining to Mr. Cortez and the event forming the basis of the accusation against the accused.  The event pertaining to the disposition evidence occurred hours prior to the main incident at the exact same location, and involved an act of violence between Mr. Cortez and another man.

[83]           Furthermore, the evidence given by Ms. Mueco and Ms. Brogyai is consistent with Mr. P.’s claim that he fought with Mr. Cortez. Both women observed that Mr. P.’s shirt was ripped and that he wanted the police to be called.

[84]           Despite the admissibility of this evidence, the Court attributes no weight to it since the testimony of Ms. Brogyai revealed that she and Ms. Mueco spoke to one another about their respective versions of the events moments before they took the stand. Due to this, the Court deems that the women are honest but unreliable witnesses.

[85]           Even if Ms. Mueco and Ms. Brogyai had been reliable witnesses, the importance of their testimonies on the disposition evidence is mitigated due to the following factors:

• they were both concerned that Mr. Cortez would be hurt since his head was on the steps when Mr. P. was on top of him;
• Ms. Mueco stated that she saw Mr. Cortez lying on the floor and not resisting while Mr. P. pinned him down;
• Ms. Brogyai explained that Mr. P. was agitated and upset.

[86]           As for Mr. P., he is also an unreliable witness since his testimony is contradicted by the versions of Ms. Mueco and Ms. Brogyai regarding the position of Mr. Cortez during their physical altercation.  Mr. P. stated that Mr. Cortez was on his knees as he held him. In contrast, Ms. Mueco and Ms. Brogyai said that Mr. Cortez was lying on the ground and Mr. P. held him down as he was on top of him. Mr. P. described Mr. Cortez as being aggressive and nervous but Ms. Mueco said that Mr. Cortez did nothing.

[87]           Mr. P. stated that as he waited for the police to arrive, he looked at the television in the lobby which transmits the images from the camera that monitors the comings and goings from the back door of the theatre. Mr. P. explained that he saw Mr. Cortez leaving the establishment through the back door after the altercation.

[88]           However, when the owner of the cinema testified earlier on in the proceedings, he stated that there were no cameras monitoring the back door and no televisions in the lobby since the video footage could be reviewed from his office on the second floor.

2.2  Did the accused commit and unlawful act by punching Mr. Cortez?

[89]           From the outset, the Court deems that all of the prosecution’s witnesses are credible.  Furthermore, the credibility of these witnesses was not put into question during the final arguments of either party. As for the credibility of the version given at trial by the accused, it will be assessed in the paragraphs that follow.

[90]           The accused testified that he executed a soft roundhouse punch to Mr. Cortez’s face because he feared being hit and subsequently knocked out by him since he seemed angry because he was denied the opportunity to have sexual intercourse with his wife.

[91]           The accused explained that Mr. Cortez did not stagger once he was hit, and that it was Mr. T.’s intervention in trying to separate the two men that caused Mr. Cortez to lose his balance and fall. However, Mr. T.’s testimony was clear that the punch made Mr. Cortez fall and that this happened after he separated the men.

[92]           The accused stated that the subtle hit to the face was done in order to create space so that he could lift up his pants and leave the premises with his wife in order to prevent an attack from Mr. Cortez.

[93]           The Court does not believe that the accused softly punched Mr. Cortez. The evaluation of the accused’s testimony shows that he was fearful of an attack on the part of Mr. Cortez who had already refused to take no for an answer in the moments that preceded the punch.

[94]           The accused was fearful for himself as well as for his wife who was left exposed to being sexually assaulted by Mr. Cortez. Furthermore, according to Mr. T., the accused seemed angry and his eyes were fixated on Mr. Cortez as he attempted to separate both men.

[95]           The accused testified that he was never angry or upset with Mr. Cortez. The Court disbelieves him on this point since Mr. Cortez was abrasive and insistent.  It is not plausible that, in those circumstances, he would not have felt irritated at the very least.

[96]           In light of this, it is highly improbable that the blow would have been executed in such a delicate fashion by the accused.

[97]           The Court is convinced beyond a reasonable doubt that the accused struck Mr. Cortez in the face which caused him to fall and hit his head against the benches, the floor or both. The pathologist’s report and testimony confirm that the death is due to blunt force trauma to the head caused by a hard surface and the autopsy findings are compatible with a fall with impact on the right cheek.[32]

[98]           In evaluating the fault element of the unlawful act manslaughter, the surroundings where the witnesses were located must be assessed.  The Court infers from the photographic evidence[33] that the floor is composed of a hard substance, likely concrete, and the benches are made of a hard plastic or metal.  

[99]           The Court is convinced beyond a reasonable doubt that the accused intended to punch Mr. Cortez in the face. This appears from the accused’s own testimony. The evidence also demonstrates beyond a reasonable doubt that the objective foreseeability of the risk of bodily harm is neither trivial nor transitory in a place such as the movie theatre where there are hard surfaces everywhere and where the floor is sloped.[34] A reasonable person would anticipate that a punch to someone’s face in that type of environment could be dangerous and that the risk of serious injury would be foreseeable.

[100]       Regarding the causal connection between the unlawful act and the passing of Mr. Cortez, the defence admitted that it had been established in their final pleadings, and the Court agrees that this is the case.

Credibility of the accused

[101]       The Court finds that for the most part, the accused’s version is plausible when evaluated against the backdrop of the entirety of the evidence, except for the following portions of his testimony:

• that he was not angry when Mr. Cortez would not take no for an answer;
• that the last punch to Mr. Cortez was a soft one that did not cause him to stumble; 
• that it was Mr. T.’s intervention that caused the fall.

[102]       The reasons why those portions of the accused’s testimony are not retained by the Court were explained earlier on in this judgment.

[103]       As for the rest of the accused’s version, the Court has no reason to set it aside. He was composed throughout his testimony and remained unshaken during his cross-examination that spanned over several hours during a two day period. Moreover, his testimony was delivered in a cogent and coherent manner.

[104]       From the time that the couple entered the cinema to the time that they exited the building, approximately 21 minutes elapsed.[35]  The couple was not involved in sexual activity for that entire time since the testimony of Mr. N. revealed that the woman went to the bathroom as soon as the couple walked into the theatre. The sexual activity began once she exited the bathroom to join her husband in the back of the cinema. 

[105]       Although the evidence does not reveal the total duration of the sexual activity, Mr. T. and Mr. N. corroborated the accused’s version that the events happened very quickly and within a matter of seconds from the time that the men were separated to the time that Mr. Cortez fell to the ground.

[106]       Mr. T. confirmed the accused’s version that Mr. Cortez headed back in the direction of the accused after he separated them. The accused’s testimony was also confirmed by Mr. N. that Mr. Cortez did not take no for an answer on two occasions.

[107]       With respect to everyone’s location when the final blow was given, the versions of Mr. T. and the accused are compatible.  Here is why.

[108]       Mr. T. stated that at that moment, he had withdrawn from the scene. The accused was in the aisle between the first and second row, very close to the benches. The accused and Mr. Cortez were one to two feet apart. Then, Mr. Cortez began to walk towards the centre aisle and backtracked in order to walk towards the accused.

[109]       Mr. T. said that the situation evolved very quickly from the time that he separated the men. The punch came between three and ten seconds later and he saw it from the corner of his eye.

[110]       He did not have a complete visual on the accused and he had even less of a view of where Mr. Cortez had fallen.  His impression is that he fell on the benches after the punch since there was a loud noise that came from the seats. Moreover, he did not know where the accused’s wife was.

[111]       As a result, the accuracy of Mr. T.’s testimony regarding this particular sequence is questionable and the reliability of his version is adversely affected. Furthermore, Mr. N. testified that the lighting in the cinema was very weak and that the main source of lighting came from the movie screen.

[112]       As for the accused, he stated that he was against the black wall behind the first bench. Mr. T. was at the edge of the first seat of the first row, but behind it, somewhere between the seat and the wall since the rows of the movie theatre are staggered.[36] Mr. Cortez was standing next to the missing seat of the first row.

[113]       Their respective descriptions are not perfectly in line with one another but when the Court compares them to the crime scene photographs[37], the evidence supports the conclusion that Mr. T., the accused and Mr. Cortez were all very close to one another near the first row of seats somewhere between the black back wall and the first seat of that row that is closest to the central aisle. It is important to note that the first seat of the first row is staggered when compared to the first seat of the second row that is directly adjacent to the centre aisle.

[114]       The prosecution argued that the accused’s version was not believable because he contradicted himself between his in-court testimony regarding the location where he parked his vehicle that evening and his videotaped statement to police. In Court, he said that he parked half a block away from the theatre, South of Duluth Street. In his videotaped statement to the police, he said that he had parked literally across the street from the theatre.

[115]       The accused explained that it was not possible to park across the street from the establishment since there is no parking space there.  His use of the word literally was meant to be figurative since that evening, he parked closer to the theatre than where he would regularly park.

[116]       Another point that the prosecution mentioned was that the accused testified that he drank two shots before he went to the theatre but he told the police that he had two or three shots.

[117]       The Court deems that even if these elements constitute slight contradictions, they are insufficient to adversely affect the accused’s credibility because they are peripheral elements that do not pertain to an issue that is determinative of an essential element of the offence for which he is charged.

[118]       The prosecution also mentioned that the accused chose his words very precisely during his testimony and that his version seemed rehearsed. The Court had the benefit of listening to the accused’s testimony for several days. He always expressed himself in a calm and articulate fashion. This seems to be an inherent part of his persona and the Court cannot impugn his credibility because of it.

2.3  Did the accused act in self-defence when he punched Mr. Cortez?

2.3.1  Did the accused believe, on reasonable grounds, that Mr. Cortez was using force against him or threatening to do so?

[119]       When the accused and his wife were engaged in sexual activity between the back wall and the first row of benches, they were surrounded by several men who behaved respectfully towards the couple. When Mr. Cortez came close to the couple, he behaved abrasively. As Mr. Cortez was being fellated by the accused’s wife, he grabbed her head and began to ram it towards his pelvis. 

[120]       Since the comportment of Mr. Cortez was disrespectful of the usual practices followed by other patrons at the theatre during sexual activity, she ceased fellating him and turned to fellate the accused.

[121]       Once the accused proceeded to have sexual intercourse with his wife, Mr. Cortez turned to him and verbalized his desire to have sexual intercourse with her.  Mr. Cortez was focused on his goal to have sex with the woman and the accused told him no.  As the accused continued intercourse with his wife, Mr. Cortez disregarded the refusal by putting his hands on her waist and attempting to pull her to him.

[122]       The accused noticed that the penis of Mr. Cortez was exposed and that he was not wearing a condom.  The accused and his wife do not take part in sexual intercourse with other individuals in places like the theatre but if they did, it would require a condom.

[123]       In order to penetrate his wife, the accused’s knees were spread and his pants were down. While he was in this position, Mr. Cortez bumped him and the accused responded by pushing him back with his shoulder.  The accused told Mr. Cortez: “no fucking, no sex”.

[124]       When the accused uttered those words, Mr. Cortez came back and grabbed his wife harder. He would not take no for an answer.  He body checked the accused harder than the first bump and the accused told him to “get the fuck away” and that there would be “no fucking”. As he held his wife with his left hand, the accused pushed Mr. Cortez in the face with his right hand.

[125]       The accused felt that it was time to leave since the actions of Mr. Cortez had extinguished his desire to pursue the sexual relations with his wife. Mr. Cortez pounced back but was blocked by Mr. T.’s arm who attempted to separate the two men. Mr. Cortez told the accused not to push him and the accused replied that he pushed him first.

[126]       As the accused began to withdraw from penetrating his wife, Mr. Cortez hit him on the side of the face with a closed fist.  The accused said to him “what the fuck did you do, you hit me” and Mr. Cortez seemed very angry.

[127]       Once the accused said those words to him, Mr. Cortez took a step back, clenched his fist and started to bounce like a boxer.  When the accused noticed the clenched fist, he became nervous and believed that Mr. Cortez would punch him again. Many thoughts were going through his mind and he felt that if he were to be hit again and knocked out, his wife would be sexually assaulted since she was still bent forward and was not aware of what was taking place between the two men.

[128]       The accused was fearful and unable to run since there were people everywhere and there was a wall behind him. He attempted to pull up his pants as Mr. Cortez pounced towards him. Out of desperation, the accused swung at Mr. Cortez with his left hand as he held his pants with his right hand.

[129]       Mr. T. testified that once he separated the men, he wished to cease his own implication and withdrew from the scene because he saw Mr. Cortez advance towards the accused. The situation escalated quickly and Mr. T. testified that there might have been more pushing and shoving that he did not see. Furthermore, he did not know what the accused’s wife was doing at that time. As Mr. Cortez walked towards the accused, he was punched.

[130]       Mr. N.’s version confirms the testimony of the accused that Mr. Cortez attempted to have sexual intercourse with his wife on two occasions in a very short period by pulling her hips as the couple was already engaged in coitus. Mr. Cortez was harassing the accused and there was pushing and shoving between both men that escalated in intensity. Mr. Cortez would not take no for an answer, and this led to them exchanging punches.

[131]       When the physical exchange between the men ceased, Mr. N. thought that the altercation was over so he left and walked behind the black wall.  About thirty seconds later, he heard noises coming from the theatre so he looked to see what was going on.  He noticed Mr. Cortez on the floor, and the accused walking in the direction of the exit that leads to the lobby.

[132]       The Court deems that the accused’s explanation with respect to this sequence of the events is plausible. Mr. Cortez was physically aggressive towards the accused further to his refusal of intercourse with his wife. When Mr. Cortez advanced towards the accused after the men were separated by Mr. T., the accused subjectively feared that he would be hit by Mr. Cortez and that if that was to happen, his wife would be violated.

[133]       In light of all the circumstances, a reasonable person with the accused’s characteristics and experiences would perceive that force was being used or threatened against him or another person. The prosecution has not rebutted this first criterion beyond a reasonable doubt.

2.3.2  Did the accused act for the purpose of defending or protecting himself from the use of force or the threat of it?

[134]       The defensive purpose of the act should be evaluated subjectively according to the accused’s state of mind in determining what prompted him to respond in the way that he did[38] when he resorted to using force[39] against Mr. Cortez. This assessment is made while taking into account the evidence as a whole as well as the speediness of the events.[40]

[135]       The Court is of the view that when the accused saw Mr. Cortez walk towards him, he feared that he would be hit and that his wife would be sexually assaulted. In his testimony, Mr. T. stated that there was a short delay from the time he separated the men to the time that the accused punched Mr. Cortez. Mr. N.’s testimony was similar to Mr. T.’s in that he saw Mr. Cortez lying on the ground seconds after the men were separated.

[136]       During this sequence that occurred very quickly, as Mr. Cortez walked towards the accused, he acted to protect himself since he was leaning down to pull up his pants, and he feared that his wife was in a position of vulnerability.

[137]       With respect to the woman’s position of vulnerability, it bares mentioning that the accused stated that Mr. Cortez had his penis out of his pants when he tried to grab her.  Since Mr. T. pulled up the zipper of Mr. Cortez while he was on the ground in order to ensure that his penis was not exposed upon arrival of the first responders, Mr. T.’s version lends credence to the accused’s fear that his wife would be violated.

[138]       During the evaluation of the defensive purpose, the Court must avoid analysing the subjective view of the accused from the standpoint of an individual who had time to reflect upon his situation and properly reason what the appropriate plan of action might have been since a mixture of feelings come into play when an individual is being attacked or is apprehensive of being attacked.[41]

[139]       It is clear to the Court that the accused did not act out of vengeance. When the accused was cross-examined about why he did not just pick up his pants and leave with his wife instead of administering the punch, he responded that he would have loved to have done that but he had no time to do so since everything happened within a few seconds and he was concerned about being knocked out by Mr. Cortez since he was the only person there who was acting aggressively.

[140]       The Court concludes that the accused’s subjective perception is plausible given the entirety of the evidence previously described in the judgment and the rapidity in which the events took place. The accused’s personal purpose in punching Mr. Cortez was undertaken to protect himself and his wife. The second criterion of self-defence has not been rebutted beyond a reasonable doubt.

2.3.3  Did the accused act reasonably in the circumstances?

[141]       Here, the court’s inquiry must focus on what a reasonable person with some of the accused’s qualities and experiences[42] would have done in comparable circumstances, and not what a particular accused thought at the time.[43] Furthermore, no single factor set out in section 34 (2) of the Criminal Code is necessarily determinative of the outcome.[44]

[142]       The Court is mindful that the entire timeframe of events is to be considered as a whole, and that analysing the reasonableness of the act by fragmenting the incident into separate sequences must be avoided.

The factors of section 34 (2) of the Criminal Code

The nature of the force or threat

[143]       When the accused refused the wish of Mr. Cortez to have sexual intercourse with his wife, he would not take no for an answer and tried to bring her to him on two occasions. There was pushing and shoving between the men and Mr. Cortez struck the accused in the face. Seconds before the accused struck Mr. Cortez, the two men were separated by Mr. T. because they were quarrelling. After they were separated and Mr. T. noticed that Mr. Cortez was heading towards the accused, he withdrew from the scene and no longer wanted to be involved.

[144]       The accused was leaning down to grab his pants when he saw Mr. Cortez pounce towards him with a clenched fist. The accused was against the wall and he punched Mr. Cortez once with his fist.

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

[145]       The use of force on the part of Mr. Cortez was imminent against the accused.  Mr. Cortez advanced towards the accused with a clenched fist as the accused’s pants were down and he was leaning to grab them with his back to the wall. When questioned by the prosecution as to why he did not just leave the scene instead of punching Mr. Cortez, the accused testified that he would have liked to have been able to do so but there was no time. The testimonies of Mr. N. and Mr. T. confirm the version of the accused that once the men were separated, the events leading up to the punch transpired rapidly.

[146]       Furthermore, there was no one impeding Mr. Cortez from advancing since Mr. T.’s attempt to keep them separate was unsuccessful. As the incident evolved very quickly, the Court deems that the accused had no other means available to respond to the potential use of force and fleeing was an unrealistic option in the circumstances.

The person’s role in the incident

[147]       When Mr. Cortez was being fellated by the accused’s wife, she stopped doing so because he was disrespectful of the usual practices followed by other patrons during this type of activity.

[148]       Moments later, when the accused and his wife engaged in sexual intercourse, Mr. Cortez wished to do the same. When the accused refused, Mr. Cortez tried to steer her towards him by grabbing her hips.  The accused refused again and Mr. Cortez tried to move her in his direction a second time but more forcefully. The accused told him to get away and the pushing and shoving began between them. Mr. T. intervened to separate the men but once this was done, Mr. Cortez moved forward with a clenched fist.

[149]       There is ample evidence to support the fact that Mr. Cortez was the only person to bring about the conflict, and the Court deems that Mr. Cortez instigated the events that led to him being punched by the accused. Mr. Cortez was intoxicated by alcohol and initiated the quarrel. This led to Mr. T.’s intervention since Mr. Cortez attempted to steer the accused’s wife towards him in order to have sexual intercourse with her despite having been repeatedly refused the right to do so. When the men were separated, Mr. Cortez headed in the direction of the accused with a clenched fist.

The size, age, gender and physical capabilities of the parties to the incident

[150]       Mr. Cortez’s size, age and weight were revealed in the autopsy report.[45] He was intoxicated at the time of the events and he registered an alcohol level of 260 mg of alcohol per 100 ml of blood when he was at the hospital in the evening.  As for the accused, the Court has no information regarding his measurements, and he testified that he had consumed a little bit of alcohol before going to the cinema.

[151]       In light of this, the Court is unable to make a finding regarding each man’s strength based on their physical attributes.  However, the evidence at trial revealed that both men are equally as strong since at the time of the quarrel when they were pushing and shoving one another, no one had the upper hand and they both held their own weight during the altercation that led to the punch.

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, and any history of interaction or communication between the parties to the incident

[152]       As stated previously by the Court, the event must be evaluated as a whole.  Therefore, there was no previous relationship or interaction between Mr. Cortez and the accused prior to the incident in question.

The nature and proportionality of the person’s response to the use or threat of force

[153]       When Mr. Cortez walked towards the accused with his fist clenched, the accused punched him once in the face.  The Court does not retain that the blow to Mr. Cortez was a soft one. Furthermore, the evidence does not permit the Court to make any findings regarding the exact strength of the punch.

[154]       In his testimony, Mr. T. used the word “bon” in French to define the nature of the punch.  The term “good punch” as described by Mr. T. does not assist the Court in assessing how strong the hit was since he testified that he was not in a position to see that particular sequence of events correctly.

[155]       The Court cannot determine the strength of the punch to Mr. Cortez but can only confirm that there were no contusions or erosions on the skin of his face[46] and that the fractures of the right zygomatic bone and right temporal bone indicate a point of impact on the right cheek.[47]

[156]       When the accused administered the roundhouse punch, he was defending himself from the threat of Mr. Cortez who was approaching him with a clenched fist as he was leaning to pick up his pants. From a physical standpoint, the accused was in a difficult position since he was exposed to being hit and his back was close to the wall.  Furthermore, the accused had just exited his wife and ceased sexual intercourse with her as she was still bent forward.

[157]       Considering all the evidence including that the event unraveled very quickly and that in invoking self-defence, the accused is not required to be judged against a standard of perfection, the Court concludes that the accused’s act was proportional to the threat of force exhibited by Mr. Cortez.

[158]       After having pondered all of the above-mentioned factors, the Court comes to the conclusion that a reasonable person faced with comparable circumstances would have adopted the same conduct as the accused. The third criterion of self-defence has not been rebutted beyond a reasonable doubt.

[159]       The evaluation of the evidence as a whole including that Mr. Cortez was the instigator throughout the entire altercation, that no weapons were used, that the accused and his wife were in a position of vulnerability before the final punch and the fact that it was one single punch to the face where the level of force could not be determined, leads the Court to conclude that he acted in self-defence.

CONCLUSION

[160]       In closing, this judgment is about a sexual adventure that turned into a tragedy, and how a precious life was lost further to one fateful punch. It is also about why the law of self-defence plays an important role in the criminal law and in society.[48]

[161]       Considering that the accused’s punch to Mr. Cortez was grounded on the necessity of self-preservation[49], his guilt has not been proven beyond a reasonable doubt.

FOR ALL THESE REASONS, THE COURT:

[162]       ACQUITS the accused.

[1]  Exhibit P-2A, photo 23 [P-2A].

[2]  Exhibit P-10, photo 48.

[3]  Exhibit P-11, photo 23 (ST3 on the sketch refers to Mr.T.’s position while F (the wife) masturbated him and H (the accused) was against the back wall).

[4]  Exhibit P-12, “Rapport complémentaire” of constable Ludovic Ouellet Leclerc, dated June 25, 2018.

[5]  Exhibit P-2, Crime scene photos, CD dated May 4, 2021; P-2A supra note 1.

[6]  Exhibit P-1, Document of the admissions of the parties, dated May 14, 2021, admission #5 [P-1].

[7]  Exhibit P-7, surveillance footage of June 25th, 2018 at 4015 St-Laurent Boulevard [P-7].

[8]  P-1, supra note 6.

[9]  P-7, supra note 7.

[10]  Exhibit P-3A, Autopsy Report dated September 21th, 2018, p. 4 [P-3A].

[11]  Idem, p. 2.

[12]  Exhibit P-4, Medical file of Juan Hernandez Cortez from the McGill University Health Centre [P-4].

[13]  Exhibit P-8, surveillance footage of June 28th, 2018 at 4015 St-Laurent Boulevard.

[14]  R. v. White, 2011 SCC 13, para.17 [White].

[15]  R. v. Jaw, 2009 SCC 42, para. 39.

[16]  Idem at para. 40.

[17]  White, supra note 14 at para. 22.

[18]  R. v. Calnen, 2019 SCC 6, para. 134.

[19]  (1981), 63 CCC (2d) 481.

[20]  R. v. Hankey, 2008 O.J. No. 5016, para. 11.

[21]  R. v. Javanmardi, 2019 SCC 54, paras. 25, 30 and 31.

[22]  R. v. Khill, 2021 SCC 37, para. 37 [Khill].

[23]  Khill, supra note 22, at paras. 52, 53.

[24]  Brunelle v. R., 2021 QCCA 783, para. 29 [Brunelle].

[25]  Villeneuve v. R., 2016 QCCA 949, para. 6.

[26]  Brunelle supra note 24, footnote 22, para. 29.

[27]  Khill, supra note 22, paras. 59 and 61.

[28]  Khill, supra note 22, paras 62, 66 and 67.

[29]  Deslauriers v. R., 2020 QCCA 484, para. 27 [Deslauriers].

[30]  Foti v. R., 2021 QCCA 1332, para. 50.

[31]  Idem, para. 48.

[32]  P-3A supra note 10.

[33]  P-2A, supra note 1, photographs 29, 30, 34 and 42.

[34]  As it was revealed by the testimony of C. N. and S. T. as well as the photographic evidence tendered as Exhibit P-10.

[35]  P-7, supra note 7, (The couple is seen entering the premises at 10:08 pm and exiting at 10:29 pm).

[36]  P-2A, supra note 1, pictures 23 and 50.

[37]  Idem

[38]  Deslauriers supra note 29, para. 26; Charette v. R., 2018 QCCA 452, para. 15.

[39]  Brunelle, supra note 24, para. 31.

[40]  Brunelle, supra note 24, para. 38.

[41]  Brunelle, supra note 24, para. 32.

[42]  Khill, supra note 22, para. 67.

[43]  Khill, supra note 22, para. 65.

[44]  Khill, supra note 22, para. 69.

[45]  P-3A, supra note 10.

[46]  P-3A, supra note 10, page 2.

[47]  P-3A, supra note 10, page 4.

[48]  Khill, supra note 22, para. 1.

[49]  Khill, supra note 22, footnote 1, para. 47.