Alexander Campbell and Tyler Josling, two men who intervened in a bar fight at a Scarborough Jack Astor’s restaurant nearly three years ago, have been found not guilty of manslaughter.
Superior Court Justice Michael Dineen ruled the two friends were “responding to a sudden situation of real peril” on the night of July 11, 2022.
Dineen also found that if Campbell and Josling had not intervened, it is entirely possible that Frank Harbalis, the man they were trying to restrain and who later died, would have caused serious injury to himself and others.
When Dineen finished reading his 45-minute judgment and said “not guilty,” a dramatic scene played out inside the fourth-floor courtroom.
From the rows in the gallery, where friends and family of Harbalis sat, a number of expletives were yelled out. Campbell and Josling began to cry, and shrieks of relief could be heard from friends and family who had stood by the two friends throughout the trial.
On the night of the altercation, 911 was called for an assault in progress at the Jack Astor’s at Scarborough Town Centre. When first responders arrived, 32-year-old Harbalis was found face down on the floor and appeared unresponsive.
Harbalis was rushed to hospital and paramedics successfully revived him, but he died in hospital two days later.
At trial, court heard from witnesses and saw video surveillance showing Harbalis, a customer, suddenly attack a restaurant manager named Trevor Jaijairam.
Harbalis, who had been in the bar for a few hours before leaving the restaurant and was captured on video scaling a seven-foot-high glass wall on the patio, returned to ask for his cellphone, which he’d left behind.
Video surveillance appeared to show Harbalis calmly talking to Jaijairam before Harbalis suddenly punched Jaijairam in the face with considerable force.
Jaijairam, who appeared to be unprepared for the blow, called for backup on his radio system. The next part of the physical altercation can only be seen in the background of the video and is much harder to see.
Harbalis is seen chasing Jaijairam before other staff members can be seen running toward the altercation. Harbalis then picks up a chair and strikes another staff member, Imzam Ali, in the head.
Immediately after the blow to Ali, Campbell and Josling can be seen running in before tackling Harbalis to the floor as Harbalis appears to attempt to swing the chair.
A prolonged struggle ensued between Harbalis, Jaijairam, Ali, Campbell and Jostling. It ended approximately ten minutes later with Harbalis unconscious with no vital signs. None of this struggle was captured on video surveillance.
Jaijairam and Ali gave evidence of how Harbalis continued to resist the struggle. Ali testified that Campbell had his left arm wrapped around Harbalis’ neck, while Ali used the word “chokehold” in an initial interview with police. At trial, he did not adopt this characterization.
Jaijairam testified he has since come to believe from watching UFC fights that a “chokehold” capable of rendering someone unconscious would require Campbell to have linked his hands together.
A pathologist who testified at trial said Harbalis’s cause of death was neck compressions, but could not conclude how those neck compressions caused his death.
One possibility was that it resulted from the application of blunt force.
The second, since Harbalis had an abnormally enlarged heart and apparent chronic heart disease from uncontrolled high blood pressure, he would have been vulnerable to rhythmic abnormalities in the electrical system of the heart that could lead to sudden cardiac arrest.
As a result, the apparent neck compression or injury may simply have been a contributing factor, combined with the stress on the heart from the ongoing struggle, in triggering Harbalis’s pre-existing heart condition to stop his heart.
Dineen concluded that the role of the defendants in the incident was “the laudable one of trying to protect others from serious harm” and that the defendants were acting as “Good Samaritans.”
“This does not give carte blanche to employ disproportionate force in response to a violent situation, but it militates in favour of a more forgiving standard when assessing the reasonableness of their decisions,” Dineen added.
Dineen said he also considered the limited time Campbell and Josling had to respond to the situation when a customer named Adrian Raghubeer saw the chokehold applied. This was within about 80 seconds of the onset of the struggle, a struggle that included Harbalis casting off all four men at one point and getting to his knees and significant initial grappling to try to get him under control.
Dineen found that Campbell and Josling were not professionals and were completely unprepared to deal with a sudden, violent and frightening attack by a very large man.
He said that was evident from some of their decisions and inferred that these men must have reasonably been afraid and did not know exactly what to do.
“I find that the most that has been proven is that the defendants may have made a brief misjudgment about the amount of force necessary and appropriate to get Harbalis under control,” Dineen said.
“They were making decisions in the face of a real threat of harm to others and with little time for careful consideration. They were trying to help. I do not believe that they meant to cause serious harm to Harbalis. I also do not believe that it can be said that this brief misjudgment rose to the level of being unreasonable in all of the circumstances, making criminal liability appropriate. This arguable misjudgment, in combination with Mr. Harbalis’s heart condition, contributed to very sad consequences. I do not know what came over Mr. Harbalis to cause his sudden, violent behaviour that night, but it is tragic that he was not able to receive the help he clearly needed.”
Outside court, lawyers for Campbell and Josling expressed their relief that the trial is finally over and said their clients are grateful for the judge’s careful consideration of the evidence in the case.
“Mr. Josling, as you can see from the reaction in the courtroom when the verdict was read out, was really, really relieved,” Josling’s lawyer, Marco Sciarra, said outside court. “These gentlemen got themselves in a situation of trying to assist and, as a result, faced a prosecution. It was a very stressful time for them over the past few years and the result was just in my opinion,”
Campbell’s lawyer Peter Thorning said, “It could not be proven that they did not act reasonably in the circumstances that they were facing, which was one of what he described as imminent peril.”