Law360 Canada (May 26, 2026, 10:46 AM EDT) --

John L. Hill

An argument escalated into a physical fight during which Maria Elena Martinez bit off the tip of the complainant’s pinkie finger.

In this aggravated assault case, the Crown relied on testimony from the complainant, her husband Stephen Marshall, and three police officers, along with Martinez’s warned statement to police and her own trial testimony. All witnesses agreed that Martinez and the complainant had known each other for 16 years, beginning when the complainant lived in a group home where Martinez worked as a caregiver, creating a mother-daughter type relationship. On July 11, 2023, the two women were drinking alcohol and using cannabis together in the complainant’s basement, with Marshall present, when the argument escalated.

The complainant testified that Martinez initiated the violence after making racist remarks and threats, lunging at her and pulling her hair. During the struggle, both women fell to the floor near a water heater, where the complainant punched Martinez repeatedly in an attempt to free herself.

She denied ever choking or grabbing Martinez’s neck and said the altercation lasted less than a minute before Marshall separated them. Only afterward did she realize part of her finger had been severed.

Marshall described the two women arguing and exchanging insults before Martinez struck the complainant on the shoulder and pulled her hair. The complainant then pulled Martinez’s hair in return, and the pair ended up on the floor. Marshall testified he saw the complainant on top when he intervened but denied witnessing the complainant choke Martinez at any point.

Const. Martens testified about Martinez’s injuries the following day, which included bruising, swelling, abrasions and what defence counsel described as two black eyes. The officer observed only slight discolouration on Martinez’s neck and no obvious signs of choking.

In her warned statement to police, Martinez repeatedly claimed she bit the complainant because she was being strangled and could not breathe. She described panicking, believing the complainant would not release her grip, and biting as a reaction to escape. She acknowledged being heavily intoxicated and said parts of the incident were foggy because she had been struck in the head.

At trial, however, Martinez’s testimony differed from her police statement in several respects. She minimized the disparity in intoxication levels between herself and the complainant. She claimed she had no independent memory of actually biting the complainant, asserting that the assault became a “blackness” after she was punched. Although she still maintained the complainant struck and strangled her, she no longer adopted her earlier explanation that the bite was a deliberate act of self-protection.

Defence counsel argued that the incident was a consensual fight in which the complainant ultimately overpowered Martinez, causing her to bite reflexively when the complainant’s finger entered her mouth. Relying on R. v. Wolfe, [1974] O.J. No. 868, counsel submitted that a reflexive action lacked the intent required for assault. Counsel also argued self-defence, asserting that regardless of who started the fight, Martinez reasonably reacted to protect herself once she was allegedly being strangled.

The Crown responded that Martinez’s lack of memory undermined any claim that she acted with a genuine defensive purpose under s. 34 of the Criminal Code. Crown counsel maintained that the injury was too severe to be considered reasonable force and argued that the appellant’s explanation amounted to an accident or reflex rather than intentional self-defence.

The trial judge applied the principles from R. v. W.(D.), [1991] 1 S.C.R. 742 and accepted that Martinez was heavily intoxicated and may have suffered concussion symptoms. He preferred Marshall’s evidence as the “sober observer” and found that Martinez initiated the physical altercation.

The judge rejected the defence of consent, holding that one cannot legally consent to force causing bodily harm under R. v. Jobidon, [1991] 2 S.C.R. 714. He also rejected the reflex argument, reasoning that Martinez’s inability to remember the bite meant there was no evidentiary basis to conclude it was involuntary. In any event, he found that biting hard enough to sever the fingertip demonstrated intentional force rather than a mere reflexive act.

Although the judge found there was an “air of reality” to self-defence, he ultimately rejected it. He concluded the appellant did not bite the complainant for a protective purpose but rather “to further the fight and to hurt the complainant.” He also ruled that even if self-defence had been engaged, continuing to bite until the fingertip was severed was not reasonable in the circumstances. The appellant was therefore convicted of aggravated assault.

She appealed (R. v. Martinez, 2026 ABCA 98). She argued that the trial judge failed to properly apply the principles from W.(D.) to her police statement and materially misapprehended the evidence concerning her memory of the biting incident.

On appeal, the Crown argued that even if the trial judge did not explicitly analyze Martinez’s warned statement to police, the statement was inherently unreliable and could be treated as having little or no weight. The Crown suggested she sounded uncertain throughout the interview, frequently using tentative language such as “I think” and “maybe,” and argued her intoxication and head injury undermined the reliability of her account. Alternatively, the Crown contended that the trial judge may have treated the exculpatory portions of the statement as hearsay.

The appellate court rejected both arguments. It held that assessing the credibility and reliability of a police interview was the responsibility of the trial judge, not the Appeal Court, and the problem in this case was that the reasons failed to show the judge had meaningfully considered the statement at all. The court also dismissed the suggestion that the appellant’s descriptions of her fear, panic, inability to breathe and attempts to escape strangulation could somehow be hearsay, since those statements concerned her own internal state of mind.

The Court of Appeal concluded that the trial judge committed an error of law by failing to address the appellant’s police statement when applying the principles from R. v. W.(D.). The statement was central to the self-defence issue because it was the only evidence directly addressing the appellant’s subjective belief that she was being choked and that she acted to protect herself. The reasons were therefore insufficient to explain how the trial judge resolved the critical issue of whether the Crown had disproved the defensive purpose element required under s. 34(1)(b) of the Criminal Code.

The court emphasized that, if properly considered, the police statement could have led to a different outcome on the ultimate issue of self-defence. It therefore rejected the Crown’s attempt to preserve the conviction under the curative proviso in s. 686(1)(b)(iii) of the Criminal Code, which permits appellate courts to uphold convictions despite harmless errors.

Although the trial judge also found the force unreasonable because Martinez continued biting until the complainant’s fingertip was severed, the appellate court held that this conclusion could not be separated from the broader error. The trial judge’s reasoning did not identify which facts he relied on in assessing reasonableness or indicate whether he considered her police statement in conducting that contextual analysis. The appellate judges stressed that self-defence assessments must consider all surrounding circumstances, including the accused’s perceptions, the prior relationship with the complainant and the dynamics of the confrontation.

The court also expressed concern that Crown counsel at trial had misdirected the judge by citing a purported legal principle from case law that did not exist. Although the trial judge did not explicitly rely on the erroneous quotation, the appellate court found that the mistake further undermined confidence in the self-defence analysis and the safety of the verdict.

As a result, the court quashed the aggravated assault conviction. It then considered the appropriate remedy in light of R. v. Bouvette, 2025 SCC 18, which requires appellate courts to consider acquittal before ordering a new trial or entering a judicial stay of proceedings.

Martinez sought an acquittal, arguing that she had already served her 15-month conditional sentence, including seven months of house arrest, had endured the stigma of a conviction for over two years and would likely have been acquitted at a retrial. The Crown argued that a new trial was appropriate because a reasonable trier of fact could still convict.

The appellate court declined to enter an acquittal but ultimately held that a judicial stay of proceedings was warranted under the abuse-of-process framework set out in R. v. Babos, 2014 SCC 16. The majority reasoned that retrying her after she had already completed her sentence would impose an unfair burden and undermine the integrity of the justice system.

The court emphasized that Martinez had already been punished and had borne the stigma of conviction for years, and that the Crown had not identified any compelling public interest requiring a retrial. Although a stay restores her to a position of presumptive innocence, the court acknowledged that it does not amount to a declaration of factual innocence. Nonetheless, given the cumulative unfairness and the flaws in the original trial, the majority concluded that this was one of the “clearest of cases” in which proceeding to a new trial would amount to an abuse of process.

The appeal was therefore allowed, the conviction quashed and a stay of proceedings entered.

In dissent on the issue of remedy, Justice April Grosse agreed that the conviction should be quashed but disagreed with the majority’s decision to enter a judicial stay of proceedings. While acknowledging that the appellant’s completion of her sentence weighed against ordering a retrial, Justice Grosse emphasized that a judicial stay is an exceptional remedy that requires proof that continuing the prosecution would amount to an abuse of process under R. v. Babos.

John L. Hill practised and taught prison law until his retirement. He holds a JD from Queen’s and an LLM in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). His most recent book, Acts of Darkness, (Durvile & UpRoute) has been shortlisted as one of five nominees for the Crime Writers of Canada’s Brass Knuckles Award for Best Nonfiction Crime Book. Contact him at johnlornehill@hotmail.com.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

Interested in writing for us? To learn more about how you can add your voice to Law360 Canada, contact Analysis Editor Peter Carter at peter.carter@lexisnexis.ca or call 647-776-6740.