Court File and Parties
Court File No.: Halton 576/16 Date: 2016-06-30
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Lesroy Quashie
Before: Justice Lesley M. Baldwin
Heard on: June 9, 2016 and June 13, 2016
Reasons for Judgment reserved to and released on: June 30, 2016
Counsel:
- A. Camilletti, for the Crown
- E. Chang, for the defendant Lesroy Quashie
Judgment
Introduction
1Lesroy Quashie is charged with committing an aggravated assault on Sen Van Quach on February 10th, 2016 at the Maplehurst Correction Centre located in Milton, contrary to s. 268 of the Criminal Code.
2Section 268 (1) reads:
Every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant.
3Both the defendant and the complainant were inmates at the time living in Unit 11, F Wing.
4Date, jurisdiction, identity and admission of the surveillance video-tape were admitted at the outset of trial. There were no Charter Applications in this case.
5During final submissions, it was conceded by the defence that the complainant sustained serious bodily harm.
6It was agreed by both Crown and defence counsel that the mens rea for aggravated assault is the objective foresight of bodily harm and does not require proof of an intent to maim, wound or disfigure: R. v. Godin, [1994] 2 S.C.R. 484, 89 C.C.C. (3d) 574.
7The defence position is that these two inmates entered into a consensual fight and that the complainant's injuries were unintended and unforeseeable on both a subjective and objective basis.
8The defence submits that because there was no intent to cause serious bodily harm, the consent to fight was not vitiated.
9The Crown takes the opposing view.
Complainant's Injuries
10The complainant was taken to Milton Hospital that day. The Hospital Records were filed as Exhibit #4.
11The presenting complaint was noted as follows: from Maplehurst, involved in altercation, brief LOC (loss of consciousness) according to patient, lost teeth (in cup with patient) and laceration to lower right lip.
12The patient appears to be bleeding from nares (nasal passages) and mouth, unable to swallow, spitting out blood…laceration inside lower lip from his teeth, actively bleeding.
13X-rays were taken of the patient's head and facial bones.
14The report notes that there is a 'presumed acute' depressed skull fragment and small subdural hematoma, although they may have been related to prior surgery. No definitive skull or skull base fracture is demonstrated.
15There are extensive facial bone fractures:
- Right inferior orbital rim
- Right lateral orbital rim
- Medial right orbital rim
- Left inferior orbital rim
- Medial left orbital rim
- Nasal bone
- Nasal septum
- Anterior medial and lateral right maxillary sinus wall
- Alveolar ridge
- Left anterior medial and lateral maxillary sinus wall
- Left maxillary alveolar ridge
- Right and left mandibular rami
- Right parasymphyseal region of the mandible
- Right mandibular condyle
- Posterior wall of the temporomandibular joint
16The patient was transferred to Hamilton General Hospital for surgery. He was hospitalized there for one week.
17Surgery consisted of putting plates in various parts of his face. His jaw was fractured and was wired shut for one month.
18Mr. Quach testified that he has basically recovered now except for his two front missing teeth.
Testimony of Sen Van Quach
19He is presently incarcerated in Joyceville where he is serving a sentence for Break and Entering and Possession of Burglary Tools. His criminal record was filed as Exhibit #3. (It is a lengthy criminal record with most convictions registered for crimes of dishonesty starting in 1996. In 2008 he received a penitentiary sentence of 2 years.)
20He is 38 years of age. He is 5' 2" and weighs 130 pounds.
21He had been an inmate in Unit 11 (F) at Maplehurst for 3 to 4 weeks before the incident awaiting a sentence.
22He had seen the defendant around there in the Unit and they had spoken a few times.
23On February 10th, 2016, he was on the 2nd floor of the Unit doing his cardio-running in one spot just outside cell #16. He had no alcohol in his system or illegal drugs. He was a prescribed methadone user.
24Mr. Quashie was walking up and down the stairs and back and forth.
25Mr. Quashie kept staring at him. Mr. Quashie had been staring at him for about 3 weeks.
26Mr. Quach said something like, 'You are not supposed to stare at a person'.
27Mr. Quach gave Mr. Quashie the 'finger', and Mr. Quashie called on him to fight.
28Mr. Quach testified that inmates fight behind the washrooms located in the open area on the main floor where the guards can't see. If the guards catch inmates fighting, they are sent to the "hole".
29Mr. Quashie went downstairs and Mr. Quach followed behind.
30Mr. Quach testified that he went downstairs to tell the (food) servers what was going down because he was not going to fight Mr. Quashie.
31Mr. Quach testified that the servers are on the range all day – they "run the range".
32Mr. Quach told the servers about the problem that Mr. Quashie wanted to fight him. They did not say or do anything about it at all.
33Mr. Quach went back upstairs and continued doing his cardio.
34Mr. Quashie came back upstairs 2 or 3 more times and they started a "little fight". They took a couple of swings at each other. Mr. Quach said that he was just defending himself and had given no invitation to Mr. Quashie to fight with him. Mr. Quach does not believe that he was hit in this first altercation. He had no injuries from this altercation.
35Mr. Quach testified that he took a denture he wears in the top right corner of his mouth out in case Mr. Quashie came at him again. He did not want to swallow the denture or have it broken.
36Mr. Quashie went downstairs again, came back up the stairs, and came at him again. Mr. Quach was trying to defend himself.
37Mr. Quashie put Mr. Quach in a headlock and started hitting him in the head – there were a number of pounds to his head and then Mr. Quach passed out.
38This happened outside cell door #16. Mr. Quach testified that he was standing up and bent over when he was put in the headlock. He thinks he was in the headlock for about one minute before he felt he was passing out. He did not hit Mr. Quashie when he was in the headlock.
39When he woke up his back was up against the (metal) railing and he was sitting on the ground facing the cell door. His nose was bleeding. One tooth in his mouth was loose and another one was on the ground. The under part of his chin was bleeding too.
40When he woke up he did not know where he was. He thought he had passed out for maybe 5 minutes.
41He saw the servers there with towels wiping up the blood. He asked them what happened.
42He was physically able to get up and went downstairs.
43Mr. Quashie was by the bathroom and he did not speak to him or go near him.
44Mr. Quach went to the glass doors to summon the guards. They took him off of the range.
45Mr. Quach did not tell the guards what happened. He did not want to ever say what happened. He went to the guards to get medical help.
46Exhibit #1 photos show the injuries to Mr. Quach's face.
47Exhibit #2 – the video-tape taken of the incident – was played for Mr. Quach. He identified himself as the man wearing no shirt and agreed that the video shows that Mr. Quashie came up to him 3 times.
Cross-Examination
48Mr. Quach repeated that when he followed Mr. Quashie down the stairs in the video he was not challenging Mr. Quashie to a fight. He went to speak to the servers who were sitting on the table near the washroom area.
49He heard someone say if there was problem with Mr. Quashie he should go back upstairs and not behind the washroom area.
50Mr. Quach went back upstairs. When Mr. Quashie came up on the 2 other occasions, Mr. Quach was not calling him to fight with him.
51Mr. Quach gave a statement to police dated February 24, 2016.
52In that statement he did not say that after Mr. Quashie put him in a headlock that Mr. Quashie then punched him in the head. Mr. Quach responded that he did not get all of it in the statement. He agreed that he had no bruising to his head. He told the Officer that he had been put in a headlock.
53In that statement, Mr. Quach said that the fight was consensual until he was rendered unconscious. He had not been hit in the face before he became unconscious while he was still standing on his feet.
54Mr. Quach described the area the altercation took place in as being 6 feet from the door of cell #16 to the metal railing with a concrete floor.
55In re-examination, Mr. Quach explained what he meant by using the word 'consensual' in his statement to Officer Glennie.
56Mr. Quach testified that it means that if they are going to hit him, he is going to defend himself. He was not going to back away. He expected that they would fight and, win or lose, they would walk away and do their time – if they did not get caught by the guards.
Testimony of Lesroy Quashie
57Mr. Quashie is 22 years of age.
58He is 5' 10" or 5' 11" in height and weighs approximately 190 pounds.
59His criminal record was filed as Exhibit #6 which starts in 2012. (It includes convictions for crimes of dishonesty.)
60He had been on the range for 2 months before Mr. Quach arrived there.
61He denies staring at people or Mr. Quach.
62On February 10, 2016, he was doing his warm-up walk. He walks with his head up when he walks.
63He looked upstairs and Mr. Quach asked him what he was staring at – was there a problem?
64Mr. Quashie ignored it. He continued to walk and looked upstairs again. Mr. Quach gave him the finger.
65Mr. Quashie went back upstairs and he asked Mr. Quach why he was getting racial with him. Mr. Quashie testified that he was the only black inmate in there.
66He went downstairs and Mr. Quach followed him. They were in each other's faces and Mr. Quashie stepped back to the washroom area.
67Mr. Quach talked to the servers. Mr. Quashie thought it was done. Mr. Quach continued to be aggressive for no reason and was swearing and arguing with him. Everyone was there and listening.
68The servers said, 'You don't want to do this'.
69Mr. Quashie continued to walk around the unit. He went back upstairs and Mr. Quach kept saying, 'Why are you staring at me?"
70Mr. Quach took his denture out and then punched him in the face.
71Mr. Quashie said that he punched Mr. Quach probably in the chest and arms, threw him against the door and then put him in a headlock. He had Mr. Quach in a headlock with his left arm and was holding Mr. Quach to his chest.
72They were fighting for about 5 seconds in the corner (out of view of the video camera). He may have struck Mr. Quach in the head a few times but has no idea.
73He let Mr. Quach go and Mr. Quach fell on his face onto the concrete floor.
74In cross-examination, It was put to Mr. Quashie that he ran up the stairs to confront Mr. Quach and that he struck Mr. Quach first.
75Mr. Quashie responded that Mr. Quach came up to his chest (in height) and should not have fought with him in the first place because he is smaller than him.
76Mr. Quashie said that he continued to walk away and Mr. Quach kept egging him on. You normally fight and then everything is done.
77The issue was about respect.
78Mr. Quach kept saying, 'Let's do it' – 'Let's finish this' – 'I'm a Pen-timer'.
79Mr. Quashie agreed that the video shows that he is above Mr. Quach with his arm around his neck.
80When asked if he agreed that this headlock could have cut-off Mr. Quach's air, Mr. Quashie responded 'yes and no'. His intention was to stop Mr. Quach from moving.
81Mr. Quashie said he had Mr. Quach in a headlock for about 5 seconds. If it had been longer, Mr. Quach would not have gotten up so quickly.
82Mr. Quashie did not think that Mr. Quach was unconscious when he hit the ground. He thought maybe Mr. Quach was dizzy.
83He has seen people unconscious before. After they fall to the ground, they move like they are having a seizure. He has seen this more than once.
84Mr. Quashie said he was not using the headlock "like to kill someone".
85After Mr. Quach fell on the ground, Mr. Quashie turned around and walked away down the stairs.
86It was put to Mr. Quashie that on the video it can be seen that he is over Mr. Quach and 2 swings at him can be seen.
87Mr. Quashie did not directly respond to the question. He answered that they both agreed to continue the fight.
88Mr. Quashie agreed after viewing the video a number of times in cross-examination that there are 10 to 12 seconds of the fight that are not captured on the video because he and Mr. Quach are in the far back corner. Mr. Quashie agreed that the video shows that he is upright and that Mr. Quach was below him and out of sight.
89Mr. Quashie denied having Mr. Quach in a headlock in the back corner. He said that it was a 'scuffle' at that point. Then he put Mr. Quach in a headlock.
90It was not his intention to "choke" Mr. Quach out.
91He chose to let Mr. Quach go – not because he became unconscious.
92Mr. Quashie said that he did not see any injuries on Mr. Quach. He saw Mr. Quach fall and then he walked away because the fight was over.
93He does not think that he punched Mr. Quach in the face. If he had punched Mr. Quach in the face, the fight would not have lasted as long as it did.
94He did not cause the face fractures. He thinks those injuries happed when Mr. Quach fell on his face.
95Mr. Quashie testified that he had no blood on his hands or his clothes after the fight. He would have been covered in blood if Mr. Quach sustained those injuries when he had him in the headlock.
96Mr. Quashie stated that Mr. Quach was not bleeding before he fell on his face.
97Mr. Quashie was shown the videotape again and asked why he jumped back from Mr. Quach just after releasing him from the headlock and before Mr. Quach fell on his face. Mr. Quashie said that Mr. Quach was dizzy and he jumped back to put some space between them.
98Mr. Quashie explained that if a person is coming at him he will not give them his back. Both of them intended to fight and he walked away when it was over and Mr. Quach was on the ground.
99In further cross-examination, Mr. Quashie was shown the video frame by frame. Other than agreeing that he is seen backing Mr. Quach up into the corner, his version of events remained the same.
Testimony of Jon Mulder
100Mr. Mulder is 30 years of age.
101His extensive criminal record was filed as Exhibit #7. (It starts in 2006 and is primarily filled with convictions for crimes of dishonesty. He also was sentenced to a penitentiary term in 2008.)
102On February 10, 2016 he was an inmate and a food server on Unit 11 (F). He had been on that range for about 2 months. He knew both Mr. Quach and Mr. Quashie as inmates on that range. He said he was neutral to both of them.
103Mr. Mulder testified that he observed a verbal disagreement between the 2 inmates that turned into a consensual one-on-one disagreement.
104He was downstairs when he heard the verbal altercation. He did not hear what they were discussing, but said that Mr. Quach used the nigger word to Mr. Quashie. (Note: not put to Quach contrary to Browne and Dunn)
105Mr. Quach was addressing the whole range. Mr. Quach was not just talking to him.
106As he was sitting on the sink outside the downstairs washroom area, he observed Mr. Quashie go upstairs because Mr. Quach wanted to fight. Mr. Quashie was 'only defending himself'.
107The distance from the sink to the upstairs back corner where the fight occurred was estimated to be 30 to 45 feet.
108He did not see any blows exchanged. Mr. Quashie's back was to him.
109He did hear how the fight ended. He heard a thump and somebody passed out and took a bad fall on a solid surface.
110In cross-examination, Mr. Mulder said that he has not seen Mr. Quashie since that day until today. They were transported to court separately and held in separate cells. The only thing he discussed with Mr. Quashie is what they get for lunch.
111He saw Mr. Quach in a bent-over position, but he did not see him in a headlock. He did not see Mr. Quash fall. His eyes were not locked on the situation.
112He went upstairs to make sure everybody was okay and alive.
113He saw some blood on the floor, helped Mr. Quach up and made sure he was stable.
114He did not alert the guards about the fight. To do so would be to take your life in your hands.
115It was not his business to tell the guards. He cleaned up the mess and carried on with his day.
Position of the Parties
116Both defence counsel and Crown counsel agree that consent may be available as a defence on a charge of aggravated assault even where serious bodily harm is inflicted as long as the accused did not intentionally cause the serious bodily harm. R. v. Paice, 2005 SCC 22, [2005] 1 S.C.R. 339; R. v. Quashie, [2005] O. J. No. 2694 (C.A.); R. v. McDonald, 2012 ONCA 379; R. v. Azevedo, 2012 ONSC 6052.
Position of the Defence
117The defence submits that this was a consensual fight in a custodial setting where Mr. Quach had taunted Mr. Quashie. Mr. Quach did not try to escape or run away from the fight despite his size difference.
118It is submitted that Mr. Quashie engaged in a consent fight with no intention of causing Mr. Quach serious bodily harm. Mr. Quashie's evidence should be accepted or raise a reasonable doubt when he said that if he wanted to cause Mr. Quach serious bodily harm he would have kept him in the headlock longer.
119It is the defence position that Mr. Quach's injuries were sustained after he was let out of the headlock and he fell forward on his face onto the concrete floor. Mr. Quashie was not aware that Mr. Quach was unconscious. Mr. Quashie could not foresee Mr. Quach's injuries on either a subjective or objective basis.
120The defence points to the fact that there was no blood on Mr. Quashie and no injuries to his hands.
121The defence submits that the video shows both bodies locked together with Mr. Quashie having both arms around Mr. Quach in a headlock. The defence submits that there was no clear evidence of any strikes by Mr. Quashie. No knee or elbow strikes or head butting can be seen.
122The defence submits that both parties were wrestling and attempting to hit each other with hands and fists and that this was a consensual fist fight.
123The defence submits that Mr. Mulder's testimony supports the position of Mr. Quashie.
Position of the Crown
124The Crown referred to paragraph 9 of the jury charge ruling in the case of R. v. Azevedo (supra) for the definition of serious bodily harm.
125"In summary the meaning of serious bodily harm for the purposes of the section is any harm whether physical or psychological, that interferes in a substantial way with the physical or psychological health or well-being of the complainant." [R. v. McGraw, 1991).
126The Crown also referred to the case of R. v. Godin, [1994] 2 S.C.R. 484 which states that:
the mens rea required for s. 268(1) of the Criminal Code, R.S.C. 1985, c. C-46, is objective foresight of bodily harm. It is not necessary that there be an intent to wound or maim or disfigure. The section pertains to an assault that has the consequences of wounding, maiming or disfiguring. This result flows from the decisions of the court in R. v. DeSousa, [1992] 2 S.C.R. 944, and R. v. Creighton, [1993] 3 S.C.R. 3.
127The Crown submits that based on Mr. Quach's testimony and the video, the Court should find that Mr. Quach did not want to consensually fight Mr. Quashie. When Mr. Quach used this word up to the point that he lost consciousness, he clarified that he meant that he was defending himself against Mr. Quashie's attacks.
128Mr. Quach told Mr. Quashie that he did not want to fight behind the washroom downstairs. He tried to enlist the support of the server. Then he retreated upstairs to continue with his workout.
129The Crown submits that a crucial 10-12 seconds of the altercation takes place in the far corner not captured by the video in the small space near cell door #16 and the metal railing.
130Mr. Quashie's back can be seen as he is upright. Mr. Quach's body is out of view.
131The Crown submits that Mr. Quashie's testimony should be rejected as evasive regarding the events even after he repeatedly watched the video.
132The Crown submits that this was a one-sided fight given the size difference between the 2 men. The Crown references Mr. Quashie's own testimony that Mr. Quach should not have fought him given their size difference.
133Mr. Quashie had Mr. Quach in a headlock for at least 5 seconds that can be seen on video while moving Mr. Quach's body around the cell door, the metal railing and on a concrete floor surface.
134Mr. Quach lost consciousness while still on his feet. Mr. Quashie continued to beat him.
135The Crown submits that Mr. Quashie's testimony that he simply decided to let Mr. Quach out of the headlock makes no sense. On Mr. Quashie's evidence, the fight was still ongoing.
136The Crown submits that Mr. Quashie let go of Mr. Quach and then jumped back because he knew that Mr. Quach had lost consciousness.
137Mr. Quashie watched as Mr. Quach fell face-first onto the concrete floor. Then he walked away because, according to him, the fight was over.
138The Crown asks the Court to reject the testimony of Mr. Mulder. He did not see the physical altercation and he testified that it was none of his business.
Findings of Fact
What the Video Shows
First Physical Altercation
139Exhibit #2 shows the accused going up the stairs and approaching Mr. Quach who is located in the far right corner. I can see the accused pushing Mr. Quach more than once.
140Then the accused goes back down the stairs and Mr. Quach follows. The accused goes to the area behind the washroom, but he is still in view.
141Mr. Quach goes up to the food servers, including Mr. Mulder, with his arms out-stretched in a pleading manner. Mr. Quach also goes up to the accused with his arms out-stretched in this same manner. The accused then points his finger at Mr. Quach's face. Mr. Quach walks away.
142It is clear that words are still being exchanged between the 2 of them and the accused is pumping his fist.
143The accused goes back to the rear of the washroom area and Mr. Quach retreats back to the upstairs right corner. The accused continues to make gestures in Mr. Quach's direction. He paces around the downstairs and looks up at the far right corner.
Second Physical Altercation
144The accused is speaking to the food servers, including Mr. Mulder. He continues to look up to the right corner. Then he runs up the stairs and quickly approaches Mr. Quach who is in the far corner. I can see the accused push Mr. Quach back at least 3 times.
145I can see the accused holding Mr. Quach in this far corner. The accused is over Mr. Quach and he is striking him a number of times.
146The accused pulls back. He then approaches and strikes Mr. Quach again. The accused moves back and then moves in and strikes Mr. Quach a number of times again, and does this again.
147I can see the accused moving Mr. Quach's body around. The accused is over the much lowered body of Mr. Quach.
148I can see the accused quickly jump back from Mr. Quach. Mr. Quach is seen falling face-first onto the concrete floor.
149The accused watches as Mr. Quach falls to the ground. Then the accused walks down the stairs.
150Mr. Quach struggles to get himself up and I can see him sitting down with his back against the metal railing.
151The accused approaches Mr. Mulder who is sitting casually on the sink swinging one of his feet back and forth. I can see that Mr. Mulder has been staring straight ahead for the entire duration of the altercation. His face never turns in the direction of the altercation at all.
152At least 4 inmates go upstairs with towels and can be seen wiping up the blood. Mr. Mulder is the second inmate to go up.
153After more pacing downstairs on the range, I see the accused take Mr. Mulder's place sitting on the sink and he starts dangling his legs casually around.
154Mr. Quach comes downstairs after a bit holding a towel to his face. He is seen speaking to a number of different inmates. Mr. Quach looks at himself in the bathroom mirror.
155Mr. Quach goes back upstairs and is seen collecting something. (presumably his teeth)
156Mr. Quach goes back downstairs and there is more conversation with other inmates.
157Mr. Quach is seen to walk to the front door where he is then removed by the guards.
158I can see that Mr. Quach is clearly the tiniest inmate on this range in both height and weight; he testified he is 5'2" in height and weighs 130 pounds. (Note: he had to stand in the witness stand to give his evidence so that I could see him)
159I can see that Mr. Mulder is a very large and heavy-set man.
160I can see that the accused is at least 5' 11" in height and is at least 190 pounds.
WD Analysis
161All of the witnesses at this trial have entries for crimes of dishonesty.
162It is the independent evidence captured on the video-tape and in the medical records that I can safely rely on.
163The independent video-tape evidence belies the account given by Mr. Quashie.
164I find as a fact that Mr. Quashie was not first punched in the face by Mr. Quach and I am not left in a state of reasonable doubt about this. At all times, it is Mr. Quashie who is seen to be the physical aggressor.
165I find as a fact, and I am not left in a reasonable doubt about this, that Mr. Quashie struck Mr. Quach a number of times before he put him in what has been called during this trial as a headlock. It is more accurately called a choke hold.
166I find as a fact, and I am not left in reasonable doubt about this, that this was not a consent fight. I accept Mr. Quach's evidence on this because it is supported by the video and the medical evidence.
167I reject Mr. Quashie's evidence that he had no intent to cause bodily harm, or serious bodily harm, when he put Mr. Quach in a choke hold. I find as a fact that Mr. Quashie knew that such a move could cut off a victim's air. I reject Mr. Quashie's evidence that he thought perhaps Mr. Quach was only dizzy. The video shows that Mr. Quashie abruptly releases Mr. Quach and then jumps back. It is reasonable on all the evidence to find, and I do, that Mr. Quashie knew at this point that Mr. Quach had become unconscious in his arms.
168I find as a fact, and I am not left in reasonable doubt about this, that Mr. Quach was unconscious and injured when he fell face-first on the concrete floor which resulted in more injuries.
169All of this damage was reasonably foreseeable to a reasonable person, including Mr. Quashie.
Conclusions
170This was not a consent fight. This was a repeated physical attack by a much larger inmate on a much smaller and physically weak inmate.
171Bodily harm which is objectively foreseeable, pursuant to R. v. Godin (supra), R. v. DeSousa (supra) and R. v. Creighton (supra), is the mens rea for aggravated assault, and it has been proven beyond a reasonable doubt.
172Even if I had found that this was a consent fight, or was left in reasonable doubt on this issue, which I am not, I would have concluded that the consent to fight was vitiated when Mr. Quashie put Mr. Quach in a choke hold which caused him to become unconscious and fall face-first. The serious bodily harm that Mr. Quach sustained was reasonably foreseeable on both a subjective and objective basis: R. v. Paice (supra), R. v. Quashie (supra), R. v. McDonald (supra) and R. v. Azevedo (supra).
173Mr. Mulder's evidence does not leave me in a reasonable doubt on any of these issues. He did not assist Mr. Quach who was making it clear he did not want to fight with Mr. Quashie. He did not see any of the physical altercation. It was not his business and he did not care. He simply cleaned up some of the blood and went back to getting on with his day.
174For these reasons, a finding of guilt is registered.
Released: June 30, 2016
Signed: "Justice Lesley M. Baldwin"