R. v. Jim
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Justin Jim
Before: Justice Peter C. West
Evidence Heard on: May 10, 11 and 14, 2018 and July 27, 2018
Submissions heard on: July 27, 2018
Written Reasons for Judgment read orally and provided on: August 27, 2018
Counsel
Mr. R. Wood — counsel for the Crown
Mr. M. Lacy — counsel for the defendant, Justin Jim
WEST J.:
Introduction
1On November 19, 2016, the Sudbury District Law Association held its annual Law Ball at the Hellenic Centre in Sudbury. Lawyers with their spouses attended for cocktails, dinner and speeches. There was a cash bar during the event. After the speeches were finished a live band played music and many danced away the evening until an altercation occurred involving the husband of one of the lawyers, Justin Jim, and another lawyer, Spencer Ball. At the commencement of the trial counsel advised there were two main issues, first, whether the altercation was a consent fight between the two individuals or whether Mr. Jim sucker punched Mr. Ball. The second issue only arises if I find the altercation between the two men was a consent fight or I have a reasonable doubt on that issue and that issue is whether the Crown has proven beyond a reasonable doubt that Mr. Jim intended to cause serious bodily harm to Mr. Ball and that serious bodily harm was caused.
2The Crown called five witnesses. First, P.C. Kyle Chandler, one of the investigating officers; the complainant, Spencer Ball; Ms. Jennifer Dowdall, a lawyer who attended the event and is a close friend of Mr. Ball; Mr. Shannon Hope, Ms. Dowdall's husband and Mr. Steven Doucette, a contractor, who attended the event with his wife who is a lawyer.
3Justin Jim testified in his own defence. Sarah Waltenbury, the wife of Terry Waltenbury, the MC for the Law Ball, testified as to certain observations she made during the Law Ball as did the defence witness, Rene Gregor.
4At the conclusion of the evidence I heard oral submissions by both counsel. I wish to extend my appreciation for the professionalism exhibited by both counsel, the efficient manner the evidence was presented during the trial and the civility displayed between counsel. It is my view this trial is a model of how counsel, who are properly prepared, should conduct themselves in representing and advocating their respective points of view.
5The following are my reasons for judgment in this matter.
Legal Principles
6In determining whether the Crown has proved Mr. Jim assaulted Mr. Ball causing him the bodily harm alleged I must apply certain legal principles, which I will now describe.
7The Crown has the onus to prove the essential elements of the assault bodily harm charge facing Mr. Jim beyond a reasonable doubt. Mr. Jim is presumed to be innocent and he does not have to prove anything. I have reminded myself that I need not firmly believe or disbelieve any witness and that I can accept all, some or none of a witness' testimony.
8Proof of a probability of guilt does not amount to proof of guilt beyond a reasonable doubt. Proof of guilt to a near certainty is required in criminal proceedings.
9I recognize that the rule of reasonable doubt applies to the issue of credibility. Accordingly, I must acquit Mr. Jim if I accept his evidence that the altercation with Mr. Ball was a consent fight and he did not intend to cause Mr. Ball bodily harm. Further, if I have a reasonable doubt that the bodily harm was caused by someone or something other than Mr. Jim, I must acquit. Even if I do not accept all of Mr. Jim's evidence I must ask myself if it raises a reasonable doubt concerning his guilt after considering it in the context of the evidence as a whole. If it does I must acquit. If I reject his evidence and it does not leave me with a reasonable doubt, I must go on to ask whether the evidence that I do accept convinces me of his guilt beyond a reasonable doubt.
10A determination of guilt or innocence must not become a mere credibility contest between the Crown's witness and the defence witnesses. Such an approach erodes the operation of the presumption of innocence and defeats the standard of persuasion of proof beyond a reasonable doubt.
11I must assess the evidence of the Crown's witness and the defendant in light of the totality of the evidence, which includes and permits comparing and contrasting the evidence of those witnesses.
12Proof beyond a reasonable doubt means what it says. There is thus nothing illogical in rejecting the defendant's evidence but still not being sufficiently satisfied by the complainant's evidence to find that the case has been proven. A state of uncertainty at a trial like this, where the court has heard two conflicting versions from the two parties involved, is not uncommon. Ultimately, if I have a reasonable doubt on the whole of the case that arises from the evidence of the Crown witnesses, the evidence of the accused or the evidence of any other defence witness, or the absence of evidence, the charge must be dismissed. (See R. v. W.(D.), R. v. Lifchus and R. v. Starr).
13In Canada, if Mr. Ball consented to fight with Mr. Jim, Mr. Jim's application of force was not an assault because Mr. Ball consented to it. However, the criminal law will not recognize Mr. Ball's consent as legally valid where Mr. Jim both intended to and actually caused serious or non-trivial bodily harm (see R. v. J.A., where the Supreme Court of Canada cites R. v. Jobidon, R. v. Paice, and R. v. Quashie and see also R. v. McDonald). In R. v. MacDonald, the Ontario Court of Appeal held, after reviewing Jobidon, Paice and Quashie:
Accordingly, following Paice and Quashie, consent is vitiated only when the accused intended to cause serious bodily harm and the accused caused serious bodily harm. The defence of consent may, if the facts support it, be available in the context of a charge of aggravated assault. In the case at bar, in my view, the trial judge erred by removing the defence of consent from the jury for its consideration on the charge of aggravated assault.
14As I have indicated above, the two main issues to be determined in this trial is whether the altercation between Mr. Jim and Mr. Ball was a consent fight or whether Mr. Jim "sucker-punched" Mr. Ball without any warning and if it was a consent fight whether Mr. Jim intended to cause Mr. Ball serious bodily harm and caused the serious bodily harm.
Factual Background
The Evidence Called by the Crown
15When the police arrived at the Hellenic Centre shortly after midnight on November 20, 2016, EMS was already on scene providing assistance to Mr. Ball, who had a cut below his left eye, on his left cheek, which required stitches. I was not provided any evidence as to the number of stitches required to close this cut. Mr. Ball also had some minor bruises on his forehead and face, as well as a black eye from the photographs entered as Exhibit 4A and D. Mr. Ball was assisted by his friend, Sophie Mageau, although she advised she had not seen the altercation or who was involved. When P.C. Chandler asked Mr. Ball who had assaulted him Mr. Ball was not able to identify the perpetrator. No statement was obtained from Mr. Ball as the EMS was taking him to the hospital. The police did not follow the ambulance in order to take a statement from Mr. Ball at the hospital nor did they wait until after his release from hospital to bring him to the police station to provide a video-taped statement.
16After Mr. Ball was taken to the hospital the officers who had responded to the dispatch attempted to obtain statements from the guests still remaining at the Hellenic Centre, some 25 to 35 individuals; however, no one came forward to indicate they had seen the altercation or who the other individual involved was. It was P.C. Chandler's evidence that those remaining were not being cooperative with assisting the police in their investigation. He testified he and his partner found this frustrating. P.C. Chandler agreed they did not take the names and phone numbers of the individuals still remaining in the hall. I accept the police evidence respecting the lack of cooperation by those who were still present when the police arrived. There is no reason why the police would not have made notes respecting information provided by witnesses as to what had occurred and how Mr. Ball had been injured. Further, the most important piece of information in the police investigation was who the other individual was who caused the injury to Mr. Ball, yet no one told them, including Mr. Ball. I will address this issue in greater detail later in my reasons.
17Although Mr. Ball had provided the officers with his cell phone number they were unable to contact him throughout the day on November 20, despite calling the phone number numerous times. On November 21, P.C. Chandler contacted Sophie Mageau to determine whether the phone number he had written down was correct – it was. He asked Ms. Mageau to contact Mr. Ball to advise him the police had been trying to reach him on November 20 and 21 without success. Shortly after speaking with Ms. Mageau, P.C. Chandler was able to reach Mr. Ball on his cell phone. Arrangements were made to interview Mr. Ball at his home. The interview was not audio recorded and was not taken as a sworn or affirmed statement. It was handwritten by Mr. Ball.
18Mr. Ball also provided the police with two digital photographs showing his face and shirt, which were covered in blood. He testified he took these photographs himself with his cell phone while he was waiting at the hospital. Mr. Ball was interviewed on November 21, 2016, at 6:43 p.m. Mr. Jim was contacted after the police interviewed Mr. Ball and he attended the police station at 9:29 p.m. and was arrested and released on a promise to appear. P.C. Chandler noted Mr. Jim had an abrasion on his right hand, a scratch of his right thumb and swollen right knuckles. In cross-examination he was shown four photos on one page (Exhibit 2) and identified the right hand photos as being similar to the abrasion and scratch he observed.
19P.C. Chandler testified the police received by email or fax, type-written statements from witnesses at the Law Ball. P.C. Chandler testified he and his partner obtained the witness' names from Mr. Ball. The witnesses reached out to the police by providing the initial type-written statement, which the police followed up on. His partner P.C. Guertin followed up by phoning these individuals and asking some additional questions. The answers provided were written by P.C. Guertin on the type-written statements. However, none of the witnesses were asked to come into the police station to provide video or audio statements. The type-written statements, which were identified and read to some of the witness, only consisted of four or five sentences.
20Although P.C. Chandler did not put in his notebook that Mr. Ball appeared to be in shock at the Hellenic Centre when the police first arrived, this was his recollection. It was P.C. Chandler's evidence Mr. Ball did not appear to be fearful of any further altercation by the person who assaulted him. At the scene he told the officers he did not know the person who assaulted him. He advised others would be able to identify this person. There was no urgency on Mr. Ball's part for the police to identify the perpetrator. When Mr. Ball was interviewed he could not provide any explanation for the assault. Further, Mr. Ball did not advise police of his having any contact with the perpetrator or the perpetrator's wife during the Law Ball or after he went to the hospital. He did not provide the police or the Crown with a Linked-in message he had sent to Mr. Jim's wife, Danielle Vincent, at 2:05 a.m., on November 20, 2018. Mr. Ball never provided the police with the name of his perpetrator or whose husband he was when they spoke briefly to him at the Hellenic Centre.
21P.C. Chandler testified when the officer spoke to Mr. Ball in the back of the EMS ambulance he indicated he did not want to provide a statement to police that night. He advised he would provide a statement the next day.
22Spencer Ball is a personal injury, civil litigation lawyer. He was originally at the law firm, Weaver Simmons in Sudbury. He now is employed with the Desmarais Keenan law firm in Sudbury. He knew Danielle Vincent as she was a year ahead of him at Western Law School. She was an acquaintance of his. He knew her husband was Justin Jim. He had seen Mr. Jim at the Law Ball previously. He only said hi to Mr. Jim previously on one occasion at a law function.
23Mr. Ball's fiancée went to Toronto to see the ballet with some friends. Sophie Mageau and Mike McNamara, two lawyers he knew, came to his house and they drove him to the Law Ball. Mr. Ball testified he had a Bud Light beer at his house. When he got to the Law Ball he had a small glass of champagne, "only two sips." It was a cash bar, which was a first, and he only had five dollars, so he had one further beer, Muskoka Detour, before dinner. He sat at one of the Conroy Scott firm's tables. He had a glass of red wine with dinner. Someone bought him another Bud Light.
24Mr. Ball testified he never spoke to Danielle Vincent during the evening and did not have any interactions with Justin Jim. After the speeches were completed the band began to play and everyone was dancing. Mr. Ball testified he was not drunk or under the influence of alcohol. He repeated this assertion on numerous occasions.
25Mr. Ball testified Mike McNamara bought him a scotch. He had only one sip. The band started to play a song and Jennifer Dowdall grabbed his arm and pulled him onto the dance floor. Suddenly, out of nowhere, he saw a fist, which struck him and he did not have time to react. He was struck on the left side of his head on his temple. He fell backward, saw blackness, felt more punches, maybe two, but not as hard or painful. When he came to on the floor he saw Mike McNamara looking down at him.
26Mr. Ball testified it seemed as if Mr. Jim ran at him and the whole incident happened very quickly. Mr. Jim did not say anything to Mr. Ball and Mr. Ball did not say anything to Mr. Jim. Mr. Ball testified he never got any opportunity to throw any punches. He covered his face instinctively for a period of time. He believed he was either unconscious or not aware of what was going on. Edwin Paquette, another lawyer, was beside him and told him something about Justin getting quite a few punches on him and Mr. Ball then saw Justin Jim standing by the door in front of a crowd of people.
27Mr. Ball testified he looked and saw Justin Jim standing there with a blank look on his face. He yelled at Mr. Jim, "Look what you've done" and Justin did not respond. Mr. Ball testified he got up off the floor and was going to run at Mr. Jim but a number of people were around him, Shannon Hope and others, and they held him back and told him to stay on the floor and let the police deal with it.
28Mr. Ball testified EMS was looking after him and two police officers poked their heads into the ambulance. They asked who hit him and he testified he believed he would have told them it was Danielle Vincent's husband. He testified he learned what her husband's name was on Linked-in while he was at the hospital. He used social media to find out who her husband was. He sent Danielle Vincent a live message via Linked-in private messaging feature, saying: "Your husband is going to jail." He sent this message (Exhibit 3) at 2:05 a.m. while he was waiting in the hospital emergency.
29He sent the message because he was attacked out of nowhere, there was no reason for this to happen. Mr. Jim punched him repeatedly and he did not think it was right. He saw the message as being a just result. He also took some photographs of his face while he was waiting. (Ex. 4A and 4D) He took other photographs when he got home from the hospital, which he provided to the police. (Ex. 4B, photograph of stitches and black eye and bruise on forehead; Ex. 4C, bruise on his left bicep. He did not know specifically how this bruise was caused.)
30Mr. Ball showed the scar under his eye and testified no other injury was permanent or continuing. However, he then testified he was diagnosed as having a concussion and had ongoing issues with his neck, shoulder and back pain and was receiving continuing treatment, physiotherapy. No medical records or evidence was led during the trial.
31He testified he did not contact his fiancée, Sara, while he was waiting at the hospital. Mike and Sophie had come to the hospital and told him not to send anything to her. He was at the hospital until 5 a.m. He went to bed when he got home. He may have been awakened by Sara at 11 a.m. when she got home. He believed he did contact the police on November 20, he believed he called the police station. The officers came to his house on November 21, 2016, when he provided his statement.
32Mr. Ball could not say what happened after he went unconscious but he had a good memory prior to being assaulted. He testified he did not want to fight Justin Jim. He would not have been stupid enough to fight in front of the judiciary and his colleagues. He was looking at the band before he was struck. Mr. Ball has had no problems with Mr. Jim since the incident. Ms. Vincent did not respond to his message. He intended to pursue this matter through civil litigation.
33He denied making a conscious decision to become involved in a fisticuffs with Mr. Jim. He testified he would not be so stupid to start a fight at the Law Ball in front of the judiciary. Prior to being struck the first time, he was looking at the band or Jen Dowdall, who he was dancing with.
34Mr. Ball considered himself to be an athletic guy and he had a first degree black belt in Karate, which took him ten years to obtain.
35At the outset of his cross-examination Mr. Ball was extremely evasive, particularly in respect of his decision to sue Mr. Jim. He initially testified he did not give instructions to his lawyer to issue a letter providing notice of intention to sue and for Mr. Jim to put his insurers on notice. He eventually conceded it likely came up in conversation with his lawyer and that he might have received a copy of the letter. When he was shown the letter he testified, "I think that I have seen this letter." (Ex. 5) He was evasive as to whether this was a normal part of civil litigation but conceded he did not provide a copy of the letter to the Crown.
36Mr. Ball agreed he was an experienced personal injury lawyer. He was familiar with soft tissue injuries and concussion. He was alleging soft tissue injuries to his neck, shoulder and back and that he suffered a concussion. He became very evasive when he was questioned about what a civil case would be worth given the injuries he was alleging. He had not issued a statement of claim but had two years in which to issue it. He was asked whether the result in this criminal case would be important to his civil case. It was during this questioning that Mr. Ball's evasiveness reached new heights. He became equivocal and misleading in his answers and claimed not to know whether a criminal conviction was prima facie proof of the underlying conduct. Mr. Ball eventually conceded he knew a conviction would make the civil case better and easier but he indicated even though he had been a personal injury lawyer for several years, he would have to research whether a conviction would be prima facie proof of the underlying conduct for the civil claim. Again, it is my view Mr. Ball was extremely evasive and bordering on being untruthful in his answers of this issue.
37Mr. Ball testified he would never engage in a physical altercation with another person at an event like the Law Ball because it would be in front of lawyers and judges and would be career suicide. Mr. Ball denied groping a lawyer on the dance floor. He would not engage in inappropriate sexual behaviour. He did not do anything like that in the same way he would not engage in a fisticuffs with Mr. Jim.
38Mr. Ball agreed he had never sent a text message or Linked-in private message to Danielle Vincent previously. He sent the Linked-in message to her at 2:05 a.m. At 2:03 a.m. he took the first selfie photo of his face and shirt. He did not believe he sent a message to his fiancée while he was waiting at the hospital. He thought it was important to send the message he did to Danielle Vincent. When he was asked if he told the police about the message he sent Ms. Vincent he said, "I can't recall if I told the police. It wouldn't be unlikely that I did." When he was asked what his answer meant he testified, "It is very likely I didn't tell them. But I can't recall specifically." Again, it is my view he was being evasive and deliberately unclear in his answers. When it was suggested to him that he did not tell the police about the Linked-in message, Mr. Ball finally said, "That's very likely sir."
39Mr. Ball was asked if he disclosed the Linked-in message to the Crown in a meeting just before the trial and again, he initially was not forthcoming in his answers. His initial position was he had "freely provided it." He finally recalled sending the message to the Crown in an email a month before the trial after the Crown asked if he had sent a message to Ms. Vincent while he was at the hospital. He finally agreed he had not told the police or the Crown about this Link-in message until the Crown asked him about it. This is another very clear example of Mr. Ball being evasive and unresponsive to questions asked in cross-examination.
40He agreed he took the photo in contemplation of a criminal prosecution as well as he was thinking about a civil claim because that was what he did for a living. The first selfie he took was at 2:03 a.m. just before he sent the message to Mr. Jim's wife, "Your husband is going to jail." At 2:09 a.m. he took another selfie of himself.
41It was Mr. Ball's position his consumption of alcohol did not impact his memory. He testified there was no doubt in his mind as to what he had to drink. He had a Muskoka Detour before going to the party. When he got to the party he had a few sips of champagne. He had two Bud lights, a glass of red wine at the table with dinner and a second glass of red wine later in the evening. The wine was not very much as they "just sprinkle a little in the glass." Finally he had a scotch but he did not finish that because he was attacked before he could finish it. He felt relatively normal. He would not describe himself as being drunk or impaired. He did not have very much to drink at the party. His consumption of alcohol would not affect his ability to recall exactly what he had to drink. He was completely in control. He would not have driven but he was not intoxicated. He would describe himself as feeling "buzzed."
42Mr. Ball testified he told the police exactly what he had to drink during his statement. He recalled the officers commenting and agreeing with his assessment of his sobriety when they spoke to him at the scene. They told him he was not slurring his words, he was very coherent and he was not having any problems. After reading through his handwritten statement he agreed there was no mention of his consumption of alcohol in it. He knew his consumption of alcohol would be relevant. The only explanation for it not being in his statement was inadvertence on his part. If the officers said he never told them what he had to drink they would be wrong. He specifically recalled telling the police verbally about his alcohol consumption.
43Mr. Ball agreed there was nothing in his written statement about his consumption of alcohol but he maintained this was something he advised the officers of verbally. Mr. Ball maintained the police confirmed with him their view that when they spoke to him at the Hellenic Centre they believed he was very coherent and that he was not slurring his words or showing any indicia of impairment.
44On July 27, 2018, as part of the defence, an Agreed Statement of Facts was read by Mr. Lacy, which indicated the police officers had no recollection of having any discussions with Mr. Ball about his alcohol consumption on the night of the Law Ball or at any other time. As will be seen from other witnesses who testified for the Crown and Defence, Mr. Ball was not completely forthright respecting his consumption of alcohol or whether he was drunk or in control. I will deal with this in greater detail when I discuss the other witnesses' evidence on this issue. Suffice it to say it is my view Mr. Ball was not truthful in his answers concerning his consumption of alcohol or its effects on his memory and behaviour.
45Mr. Ball testified he recalled calling the police at the police station and speaking to them and arranging the interview for November 21 at his house. He testified he was "proactively reaching out" to the police. When it was put to him the police had been calling him all day on November 20 and 21 but could not reach him at the number he had provided, so they contacted his friend, Sophie, and it was only after they spoke to her that Mr. Ball finally answered his phone, Mr. Ball's position on this issue changed. The officers testified they arranged to come to see Mr. Ball at his house to take his statement. Mr. Ball maintained he called the police and he did not recall receiving a call from the police. Mr. Ball suggested the police must have had an incorrect number for him. In fact, the police confirmed the number they had with Sophie Mageau was Mr. Ball's cell phone number.
46As indicated above, what was troubling concerning Mr. Ball's evidence on this issue was how he changed his evidence from his calling the police at the police station himself to set up the interview, to his calling the police station, the officers were not available so Mr. Ball left a message and one of the officers called him back later. This was a complete 180 degree change in his testimony. It is my view respecting this evidence that Mr. Ball originally lied and when he realized the police had testified they had called him to arrange the interview, he changed his evidence and said he left a message for the officers to call him and they called him later.
47Mr. Ball testified he saw Justin Jim and his friends doing shots at the bar and he felt Mr. Jim was drinking too much given it was the Law Ball and there were judges in attendance. Mr. Ball's answers about Mr. Jim's alcohol consumption is noteworthy first, because this answer was not responsive to the question Mr. Lacy asked and second, why would Mr. Ball's attention be on Mr. Jim and Ms. Vincent and their friends doing shots at the bar and drinking to excess if he only knew them as passing acquaintances and he had no previous interaction whatsoever with Justin Jim? A further issue was Mr. Ball never told the Crown or police about his observations concerning Mr. Jim's drinking. The first time he mentioned this was in cross-examination.
48P.C. Chandler's evidence is in conflict with Mr. Ball's evidence as to his observations of Mr. Ball's demeanour or condition at the Hellenic Centre when he first encountered Mr. Ball in the ambulance. He testified he believed Mr. Ball was in shock. Mr. Ball told the police he did not know who did this to him yet he testified in court he knew the perpetrator was Danielle Vincent's husband and he told the police. He also testified the President of the Sudbury District Law Association, Mr. Edmund Paquette, and Mike McNamara were the first people he saw when he came to on the dance floor and Ed Paquette referred to "Justin" as being the individual who punched him. It is my view this was an example of Mr. Ball being less than truthful with the police at the Hellenic Centre.
49P.C. Chandler also testified Mr. Ball told the officers he would provide a statement "tomorrow," yet Mr. Ball testified he would have provided a statement at the hospital, as he had to wait a considerable period of time. Again, Mr. Ball's evidence is in conflict with P.C. Chandler's evidence as Mr. Ball did not answer his telephone on the numerous occasions when the police attempted to reach him on November 20 and 21.
50Mr. Ball testified the first punch was to his left temple and he described seeing "blackness" and then coming to on the dance floor, close to the stage. He was unable to say what caused the laceration under his left eye. He agreed in cross-examination after the first punch he was not completely out but not completely awake either. He was unable to assist whether there was a "tackling motion" and he and Mr. Jim fell against a microphone. He had no recollection of falling into a microphone. Mr. Ball agreed he cannot say if it was a punch that actually caused the laceration.
51Mr. Ball testified he fell backwards and when he woke up he was on his back, although he had no recollection of striking his head on the floor. Mr. Ball again was evasive in his answers when he was asked whether there was any injury to the back of his head or his neck. He eventually agreed there was no injury to the back of his head or neck. When he was questioned concerning his evidence of not really feeling the subsequent punches after the first punch by Mr. Jim, Mr. Ball once again became evasive and equivocal in his answers. For example, when it was put to him that his orbital bone was not fractured he testified he had not seen the imaging and he believed someone would have told him if he had. Similarly, when asked if his nose was broken he answered, "I don't believe so." Yet in-chief he testified they took many images of his face at the hospital because they were concerned about facial fractures and thankfully he did not have any. He then, out of the blue for the first time, described blood coming out of his ears, which he attributed to the repeated punches that he described did not hurt as one would expect. Mr. Ball asked to see the photos he took and agreed both photos really did not depict blood coming out of his ears but he then pointed to Exhibit 4D and testified this photo "may depict blood but not very clearly." Mr. Ball had never told anyone, either the police in his statement or the Crown when they spoke a month before the trial or in his evidence in-chief that the punches caused blood to come out of his ears. He drew a circle on Exhibit 4D where he testified he could see blood coming from his right ear. I have carefully examined this exhibit and I am unable to discern any blood coming from Mr. Ball's right ear. It was my view Mr. Ball was making this up as he was answering Mr. Lacy's questions. The first time he gave this evidence was in cross-examination when he was being challenged on the injuries he received as a result of being, as he described, repeatedly punched.
52It is interesting that Mr. Ball testified after the first punch he experienced blackness, a sensation of falling, of being semi-conscious and not really aware of what Mr. Jim was doing, yet he described being repeatedly punched. He also testified that when he came to lying on the dance floor by the stage, Edmund Paquette spoke to him and told him, "Justin got quite a few punches in on you." In Mr. Ball's handwritten statement he indicated he was told by someone Justin Jim punched him when he was on the ground. He did not name Edmund Paquette as the person who told him this. Mr. Ball later admitted he only knew Mr. Jim punched him when he was on the dance floor because of what others told him.
53P.C. Chandler testified when he and his partner arrived at the Hellenic Centre there were still 20-25 people there. Nobody came forward to provide any information as to what happened or who was involved in the altercation with Mr. Ball. None of the statements obtained by the police were video-taped at the police station, including Mr. Ball's statement. Mr. Ball was the person who provided a list of names of potential witnesses and he arranged for those individuals to send emails outlining their observations and knowledge of what took place to the police. What police protocol would allow the investigating officers to delegate their responsibility to identify witnesses of a physical altercation to the complainant, who had advised the police in his handwritten statement that he was unconscious or semi-conscious after the first punch? From the evidence of P.C. Chandler, those witness' statements were only four or five sentences long. Apparently the police officers then contacted these witnesses later, asked them some follow-up questions and recorded the witness' responses on the typewritten emails. None of these witnesses were interviewed in the police station using a tape recorder or video recorder. Edmund Paquette and Mike McNamara, who were described by Mr. Ball as being the first individuals he saw looking down at him when he came to on the dance floor were not called by the Crown as witnesses. Mr. Ball testified Edmund Paquette told him he did not want to be involved and he did not provide Paquette's information to the police. As far as I am aware Mr. Paquette and Mr. McNamara were not interviewed. Mr. Ball described talking to Sophie Mageau just before he was punched by Mr. Jim, yet she told the police she did not see the altercation and was not a witness. It is my view the police investigation left much to be desired and in many ways was a dereliction of their responsibility to conduct an independent and impartial investigation. The police did not even take down the individual's names and contact information who were still present at the Hellenic Centre when they first arrived.
54Mr. Ball testified he knew Rene Gregor, who was a lawyer at Weaver Simmons when he worked there. He testified any evidence she would provide would be tainted because of what he described as a vendetta she had against himself and his fiancée. When it was put to him he did not know what she was going to testify about, Mr. Ball testified he did not care, as anything she said would be a lie and she would say anything to try and seek vengeance against him. It is my view Mr. Ball's evidence concerning Ms. Gregor's evidence speaks negatively to his own credibility, especially knowing the limited nature of her evidence having heard her testimony. It is my view there was a certain arrogance and self-importance on Mr. Ball's part to be able to maintain his character assassination of Ms. Gregor, a criminal lawyer and member of the Law Society in good standing. I found Ms. Gregor's evidence to be candid, restrained, forthright, responsive to the questions asked of her, and completely without any agenda as alleged by Mr. Ball.
55Mr. Ball testified he did not know who Justin Jim was, yet he did not ask Ed Paquette who "Justin" was when he was told Justin got in quite a few punches. Further, Mr. Ball did not put in his written statement that he had to be held back after he got up from the floor because he was angry and wanted to go towards Mr. Jim to retaliate. As he was being held he yelled, "Look what you did." At no time did he say it was not a "fair fight" because Mr. Jim "sucker punched" him. Mr. Ball agreed he did not include having to be held back from going to Mr. Jim in his police statement. When he was asked if he told the officers about having to be held back, in the same way he had concerning his alcohol consumption, Mr. Ball said, "I may have." When Mr. Ball was confronted about something that was not in his statement he often indicated he may have told the officers verbally. It was clear from the P.C. Chandler's evidence that Mr. Ball did not advise them of anything verbally.
56It was Mr. Ball's position he had not had any words with Justin Jim at any point during the evening. There was no reason for Mr. Jim to come over to him and attack him in the manner he did. It was completely out of the blue. He denied punching Mr. Jim back.
57Mr. Ball testified it was not possible he and Mr. Jim moved rapidly across the dance floor diagonally or that he appeared to be back pedalling and eventually fell backward into a speaker stand or microphone stand near the left side of the stage.
58Mr. Ball disagreed that Mr. Jim had words with him on the dance floor while he was dancing with Jennifer Dowdall. He disagreed they were both upset with each other and exchanging insults. Mr. Ball testified he did not exchange any words with Mr. Jim. Mr. Ball denied there was any scuffle or pushing between he and Mr. Jim on the dance floor. Renee Gregor's evidence was completely inconsistent with Mr. Ball's position. She observed Mr. Ball and Mr. Jim very close to each other, touching, verbally arguing with each other, confrontational and angry to the point she believed they were going to engage in a fight and to prevent this she danced through them to separate them, which she did successfully.
59Mr. Ball denied being drunk or impaired. When he was asked what he would say if people at the Law Ball testified he was impaired Mr. Ball said, "Define impaired?" He then said he was not drunk that evening. He agreed he cannot say whether he fell to the ground immediately after the first punch. He cannot say he was punched when he was on the ground because he was unconscious. After the first punch he was semi-conscious and he cannot say if he went to the ground right away or what he did. When he was semi-conscious he felt other punches but they did not hurt and he does not know if he was standing or if he was on the ground.
60Mr. Ball does not know Sarah Waltenbury. He does know Terry Waltenbury as being a criminal lawyer. He likes Terry and Terry bought him a beer during the evening.
61Jennifer Dowdall is a friend of his. Shannon Hope, her husband, is a friend. He has been to their house and they have been to his house. He worked with Jennifer Dowdall at Weaver Simmons. He does not know Steve Doucette but is aware he is married to Josee Paquette, who is Edmund Paquette's sister. Edmund Paquette told Mr. Ball the day after the incident he could not get involved but Mr. Ball should contact Mr. Doucette, as he pulled Mr. Jim off Mr. Ball. Mr. Ball initially said he could not recall if he called Mr. Doucette but later he said he did call him and testified he definitely called him. He gave the police Mr. Doucette's name. He admitted he likely asked Mr. Doucette what he saw. Mr. Doucette denied speaking to Mr. Ball about the incident.
62Mr. Ball volunteered that Mr. Jim was a good dancer and he had seen him dancing at previous Law Balls. He disagreed he started "chirping" at him about his dancing. Mr. Jim never was "chirping" at Mr. Ball saying that he was a pervert. Mr. Ball denied anyone would have seen him acting inappropriately towards Jen Dowdall by grabbing and touching her on the buttocks. This did not happen. Mr. Ball testified her husband was right there, they are good terms, so it would not make a lot of sense for him to do that to Jen. He disagreed he was groping Ms. Dowdall when her husband's back was to the dance floor.
63Mr. Ball testified it never happened that he and Mr. Jim were egging each other on. He disagreed there was any pushing back and forth by either of them. It never happened that they were each egging the other on to engage in a consent fight. Mr. Ball denied being responsible for any of what happened between he and Mr. Jim. Mr. Ball holds Mr. Jim completely responsible. He served him with notice and on the night he wanted Mr. Jim to go to jail.
64He also holds the Sudbury District Law Association responsible for what happened and his lawyer put them on notice. If they over-served Mr. Jim then the law says they would be responsible. Mr. Ball agreed he gave his civil lawyer instructions to put the Sudbury District Law Association on notice. When Mr. Lacy questioned Mr. Ball about his giving instructions to his lawyer to serve notice on the Hellenic Centre he once again became evasive in my view and also backtracked on his evidence admitting to providing instructions to serve notice on Mr. Jim and the Sudbury District Law Association. He testified his lawyer was not acting contrary to Mr. Ball's desires in terms of how the case should be directed but he did not recall instructing him on notice letters. When Mr. Lacy suggested there was nothing preventing Mr. Ball from waiting to serve the various parties with notice letters, Mr. Ball testified there was case law that suggested if there was no notice letter then pre-judgment interest might not start to run under the Courts of Justice Act. He further indicated the defendants could move assets around and say they were not aware there was going to be a lawsuit. This testimony was inconsistent with his earlier testimony concerning the notice letters.
Jennifer Dowdall
65The next witness called by the Crown was Jennifer Dowdall. She was currently working as the Equity, Diversity, & Human Rights officer at Laurentian University for the past year. Previous to that she worked as a lawyer at Weaver Simmons. She was an articling student at Weaver Simmons when Mr. Ball was a student. They are still friends and they go to each other's homes.
66She and Spencer Ball both enjoy dancing so they probably danced together. She was not just dancing with one person. There was a lot of group dancing. She was drinking alcohol but did not recall what she had to drink. She was drinking wine, white wine at dinner and red after dinner. On a scale of 1-10 she believed she would be a 5-6 or 6-7 at around midnight.
67She was dancing near the stage with Spencer Ball. There was space between them when they were dancing. Everyone was having fun. She saw Mr. Jim coming across the dance floor and the next thing she recalled was Mr. Ball was on the floor and Mr. Jim was straddling him, over top of him and punching him repeatedly with both hands. She could not see if Mr. Ball was doing anything to Mr. Jim. She would say Mr. Jim threw multiple blows but cannot state a number. She had not observed any interactions between Mr. Ball and Mr. Jim during the course of the evening.
68Ms. Dowdall observed Mr. Jim and Ms. Vincent dancing during the evening. She did not observe Mr. Jim drinking any alcohol. She did not recall anything being said by Mr. Jim and Mr. Ball when Mr. Jim was coming across the dance floor. She did not recall if Mr. Ball was defending himself in any way. Mr. Jim was blocking her view. She saw people pull Mr. Jim off Mr. Ball.
69She described everyone being in a state of shock over what happened. Mr. Ball was in a state of shock and was very upset.
70She did not know who called the authorities. The police were there trying to sort out what happened. Her husband Shannon Hope took her home. She did not know why she did not provide a statement to the police that evening.
71Ms. Dowdall was contacted by the police and she emailed her statement to the investigating officer. Prior to sending in her statement she had spoken to her husband about the incident. Everyone was talking about what happened as it was an upsetting event. She contacted Mr. Ball before she sent in her statement but their discussion did not influence her statement to the police.
72Ms. Dowdall could not really recall where she was standing or how close she was dancing to Mr. Ball when the incident occurred. She did not recall if Mr. Ball was physically touching her when Mr. Jim came up. They could have been touching at some point when they were dancing. She did not find anything Mr. Ball was doing to her to be offensive. Her husband, Shannon Hope, was at the Law Ball and he would not have stood by if she was being groped or sexually assaulted.
73She did not see anything done by Mr. Ball that would have provoked Mr. Jim. She never saw anything to suggest Mr. Ball wanted to fight with Mr. Jim that night.
74In cross-examination she admitted the first time anyone spoke to her about her sobriety on the night of the Law Ball was a couple of days before the trial when she was talking with the Crown. There was nothing in her written statement or the handwritten notes of the officer about her consumption of alcohol. She told the Crown she had a lot to drink and it would not surprise her if others at the event described her as being drunk. She was having a good time because she was drunk. She agreed she was drunk that night.
75She mostly likely sent her email to the police the week after the incident. She had discussed the incident with a number of people, including Mr. Ball. She agreed Mr. Ball said he wanted her to speak to the police and provide a statement.
76Ms. Dowdall agreed her ability to recall exactly what happened may have been affected by her consumption of alcohol. Her typewritten statement, her email, was only four sentences long. She indicated she was dancing with Mr. Ball nearest the stage and Mr. Jim was dancing on the other side. She saw Mr. Jim coming across the dance floor. The next thing she noticed was Mr. Jim was on top of Mr. Ball on the floor. She agreed there was nothing in her statement indicating Mr. Jim was straddling Mr. Ball and striking him repeatedly, with left and right hands multiple times. She remembered Mr. Jim being on top and punching Mr. Ball but cannot say how many times. She did not describe alternating punches. Everything happened very fast.
77She did not observe anything that night to indicate Mr. Ball wanted to fight Mr. Jim but she had no idea if they had interactions during the course of the evening because she was not watching Mr. Ball nor was she with Mr. Ball all the time. She considered Mr. Ball and his fiancée, Sara, to be friends apart from being professional colleagues. She socialized with them apart from professional, work-related events. This was not the case with Danielle Vincent or Justin Jim.
78Ms. Dowdall recalled Mr. Ball getting off the floor and having to be held back from retaliating against Mr. Jim. Mr. Ball was angry and upset.
79She knew Mr. Ball's position was that Mr. Jim attacked him unprovoked, as Mr. Ball told her this. Mr. Ball told her that there was nothing that happened that could have caused any of this to be brought on by him. Yet in her evidence in-chief she testified Mr. Ball said, "What did I do," and in cross-examination she added further words Mr. Ball said, "What did I do, like, to deserve this?" Ms. Dowdall never indicated any words that were said by Mr. Ball after the altercation in her initial four-sentence email to the police or in the police follow-up questions and her answers or in her recent discussion on the phone with the Crown. She conceded in cross she could not recall the words he said after the incident. It is my view Ms. Dowdall was repeating things she heard said to her by Mr. Ball and her evidence in-chief raises concerns as to her reliability and credibility.
80Ms. Dowdall knew the police were there and wanted people to come forward to assist in their investigation. She was not sure why she did not provide a statement. She surmised it could have been her lawyer brain saying she should not give a statement then because of her alcohol consumption. She agreed it was not the correct way to provide a statement to the police, to speak to others first as opposed to providing a statement at the time. She agreed it was possible for inadvertent tainting to occur as a result of that situation.
81Mr. Ball told her he was going to sue Mr. Jim, the Sudbury District Law Association and the Hellenic Centre and he told her she was an important witness for him in the civil suit. He provided the name of his lawyer to her a long time ago but she had not spoken to the lawyer yet.
82Ms. Dowdall described herself as easy going and that she and Spencer were friends. She admitted she could not rule out the possibility that when she was feeling the alcohol and having a good time and drunk that Mr. Ball may have actually touched her in ways that if she was sober would not have been tolerated. It could have happened that Spencer Ball was grabbing her buttocks. She did not think he would have put his hand up her dress but she could not rule it out given her state of drunkenness. She would hope her husband would say something if he saw it happening. She conceded someone else may have said something to Spencer about seeing something.
83Ms. Dowdall marked Exhibit 1A as to where she was dancing with Mr. Ball when Mr. Jim came across the dance floor. She does not recall how the altercation started or what happened. She did not know if they were face to face. She agreed her level of intoxication would have affected her ability to be aware of everything that went on. She did not know if Spencer said at some point it was not a "fair fight." She did not see Mr. Jim punch Mr. Ball until Mr. Ball was on the ground.
84In my view it is completely inexplicable that Ms. Dowdall is unable to provide any description of what happened after Mr. Jim came up to where she and Mr. Ball were dancing. She cannot provide any description of the interaction between Mr. Ball and Mr. Jim in terms of words spoken, whether there was a scuffle between the two men, whether there was a pushing and shoving match, whether they moved across the dance floor before falling just in front of the stage. There was a significant gap in her evidence and she was right there, she was clearly in a position to observe the nature of the interaction between the two men.
85I also find it particularly telling and significant that Ms. Dowdall conceded Mr. Ball could very well have been touching her inappropriately on the dance floor. As I will discuss later in my reasons, Mr. Jim described Mr. Ball's actions towards Ms. Dowdall as being the catalyst and what prompted his intervention with Mr. Ball that led to their consent fight. Sarah Waltenbury also described Mr. Ball, in what had to be an earlier occasion from when Mr. Jim observed Mr. Ball putting his hand over Ms. Dowdall's dress and putting his fingers between her buttocks, as she did not observe the physical altercation between Mr. Jim and Mr. Ball. She described Mr. Ball and Ms. Dowdall as dancing very close and she was shocked by the conduct, as it was inappropriate for someone who was married. The interaction made her uncomfortable.
86Ms. Dowdall described Mr. Ball as being intoxicated. He was drinking and she would describe him as being drunk based on her interactions with him that night, as well as her previous interactions with him when he was drunk. It was Ms. Dowdall's clear evidence that Mr. Ball was drunk. Ms. Dowdall's evidence puts a lie to Mr. Ball's assertion he was not drunk or intoxicated and that he knew exactly the number of alcoholic drinks he consumed.
Shannon Hope
87Shannon Hope was at the Law Ball with his wife Jennifer Dowdall. He was a professional hockey player and played in Europe for 25 years. Mr. Hope was driving so he only had one beer and a glass of wine during the evening. He believed he had seen Justin Jim at previous Law Balls and knew he was Danielle's husband. His wife worked at Weaver Simmons at the time and Spencer Ball had worked with her there as a student. Mr. Ball had been to his house for dinner.
88Mr. Hope had no interaction with Mr. Jim during this Law Ball other than after the altercation when he went over and spoke to him and asked what was going on. He observed Mr. Ball on the dance floor and described him as quite jubilant and someone who liked to dance. He observed Mr. Ball with his wife dancing together.
89When the incident happened, Mr. Hope was standing on the right side of the stage, looking at the stage, talking to Steve, Josee Paquette's husband. They were standing at a table that was one table from the dance floor. Steve stopped Mr. Hope in mid-conversation and said there's a fight on the dance floor. Mr. Hope was not facing the dance floor, which was off to his left. Mr. Hope turned and looked at the dance floor. He saw Justin and Spencer approaching the stage. The next thing he saw was Justin over top of Spencer with his arms alternating in a punching motion.
90Mr. Hope was asked if he saw punches landing and testified, "Gauging after I seen Spencer, yes." He continued and indicated, "After the fact when I seen – you know, Spencer, the damage to Spencer." He was asked if he saw the punches land and he testified he did, to Mr. Spencer's head. Mr. Hope testified there may have been 15 blows, alternating left and right sort of blows. Steve ran ahead of him and pulled Justin off Spencer.
91Mr. Hope described what he first saw as being like a rugby tackle, the two men driving towards the stage. Spencer went to the ground first and Justin was over top of him, straddling him. He did not know what started the altercation. He was asked to explain who rugby tackled who and Mr. Hope replied, "Spencer was in front of Justin and they rugby tackled…they both sort of fell on the stage and my initial reaction was, two guys wrestling on stage…the punches started, and then Steve and I reacted and pulled Justin off." He did not observe Mr. Ball punch or kick Mr. Jim, he wasn't retaliating from what he could see.
92Mr. Hope described what he saw as a fight. He did not know who was fighting initially. When they pulled the guy off he realized it was Justin and he saw the guy on the floor was Spencer. He saw Spencer was bleeding from a cut under his eye but did not know what happened. He asked Justin what happened and he did not answer.
93He did not see any interaction between Spencer Ball and Mr. Jim during the evening but he was not watching them all the time.
94The police arrived at the Hellenic Centre and Mr. Hope said he spoke to them. He did not provide a more formal statement until a week later. He typed up his statement and emailed it and then there were some written notes from a telephone conversation he had with the officer. Mr. Hope told the Crown he had talked to his wife about the incident. He also spoke to Mike Mac and Sophie Mageau about what happened. He also spoke to Spencer Ball on one occasion.
95He did not see anything inappropriate between Spencer and his wife, Jennifer, on the dance floor. He was asked by the Crown if he saw Spencer grabbing his wife's buttocks and whether that would be something he would tolerate. He said he is fairly laid back but if he had seen something like that he would probably tell Spencer to back down.
96He did not notice anything about Mr. Jim's drinking and nothing stood out as to whether he was intoxicated. He would believe Mr. Ball was drinking based on knowing him. He knew Spencer was drinking that night. He believed Mr. Ball's level of sobriety was the same as his wife's. They both should not have been driving home.
97Mr. Hope agreed he was not keeping watch on his wife at all times so if there was groping or Mr. Ball being a little touchy-feely, it could have happened without him knowing about it.
98When it was suggested to Mr. Hope the number of punches he estimated as being 15 was just him throwing out a number, Mr. Hope agreed but said it wasn't one or two. He agreed he had never previously suggested there were 15 punches delivered by Mr. Jim.
99Mr. Hope testified he did not see any punches until after they hit the deck. He agreed he was not counting punches. He also agreed after they went to the floor others were running quickly to break things up. He agreed at the point it was broken up Mr. Jim was getting the better of Mr. Ball. That is the point people move in to break things up.
100Mr. Hope agreed he did not see a punch that caused Mr. Ball to fall to the ground. He did not know what caused the cut to Mr. Ball's face. He has seen people get hit in the face and have no injuries.
101Mr. Hope did not see Jennifer at all when he turned and saw the two men falling to the dance floor. He did not know Jennifer had been dancing with Spencer. He did not know or see if Mr. Jim was running towards Mr. Ball. He was not in a position to see if there had been pushing and shoving back and forth between the two men. He described what he saw as a fight. He started to notice it when they were just starting to fall down onto the dance floor. When he first looked over they were moving to where they both fell to the floor.
102Mr. Hope agreed the full extent of his typewritten statement to the police officer was as follows:
I was talking to Josee Paquette's husband, Steve, at the table to the right of the stage. Steve interrupted our conversation. I turned around and saw I have been informed is Mr. Justin Jim and Mr. Spencer Ball go in to the corner of the stage and Mr. Jim was on top of Ball throwing punches at Mr. Ball. Steve pulled Jim off of Mr. Ball.
103There was no reference to his speaking to Mr. Ball and having a discussion. The same is true for his follow-up answers to the officer's questions when the officer called him back. There was no reference to Mr. Hope asking Mr. Ball why it happened or why he was fighting this guy. Mr. Hope testified after speaking to Mr. Jim he went back to Mr. Ball and asked him what happened and he said, "I don't know."
104Mr. Lacy suggested to Mr. Hope that Mr. Ball never said to him he was "sucker-punched." Mr. Hope responded for the first time in his evidence that Mr. Ball had said that later that evening. Mr. Hope now maintained he went and spoke to Mr. Ball a second time that evening when Mr. Ball was probably more with it and this was when he said he was "sucker-punched." When Mr. Lacy pressed him on this "new version" Mr. Hope testified when he asked Mr. Ball what happened he said he didn't know and maybe Mr. Hope heard from others what Mr. Ball had said after the incident. I found Mr. Hope's willingness to incorporate what he heard from others as his own evidence of what Mr. Ball told him, to be quite troubling and concerning. At the point in his evidence when he testified for the first time Mr. Ball told him he was "sucker-punched" it is my view Mr. Hope was making things up as he was going along, with an agenda to assist Mr. Ball.
105When Mr. Lacy put to Mr. Hope that after the altercation was over and Mr. Jim was sitting in a chair, Mr. Ball got up to advance towards Mr. Jim and had to be restrained from retaliating, Mr. Hope once again became quite evasive. Initially he would only say Mr. Ball was upset, when he was asked a second time all he would say was Mr. Ball was infuriated, when he was asked a third time he said he did not remember if he was involved but he did not restrain Mr. Ball. He thought it might have been someone else. Mr. Hope finally testified he wanted to give the right answers and he could have restrained Mr. Ball but finally agreed someone else did. A hundred percent it happened, Mr. Ball got up and advanced towards Mr. Jim and had to be restrained. He did not mention this in his police statement, either in the initial typewritten statement or his answers to the officer's follow-up questions.
Steven Doucette
106Steve Doucette attended the Law Ball in November 2016 with his wife, Josee Paquette, who is a lawyer. Her brother is Edmund Paquette, who is also a lawyer. He had attended four previous Law Balls and believed he met Justin Jim once before. Justin Jim's wife is a lawyer, her name is Danielle. He knew Spencer Ball from previous Law Balls. Mr. Doucette was drinking that night. He had six beers and one glass of wine. He was not dancing rather, he was socializing. He talked to his brother-in-law and Terry Waltenbury and his wife Sarah.
107He saw a person being assaulted on the dance floor, he was about 20 feet away. He did not expect this at a Law Ball. He was at the edge of the dance floor speaking to his wife and Shannon Hope. His wife left and it was just he and Shannon talking. He was pretty shocked and he ran to pull the person off the other individual. He grabbed them both and he realized the person on top was Justin Jim. He grabbed the back of Jim's blazer. He saw Justin Jim punch Spencer Ball four or five times. He saw Spencer's head bouncing off the floor in a jerking motion.
108He was pretty sure Spencer Ball was semi-conscious. Mr. Doucette testified when someone was semi-conscious it was when their "bell has been rung." When he looked over he saw Justin Jim straddling over Ball, sitting on him and he saw Jim's right hand/arm going up and hitting him.
109He testified he was concerned if he did not intervene a defenceless person not fighting back could have been seriously hurt or even death. He never saw Mr. Ball strike Mr. Jim. He never heard Mr. Ball threaten or yell or call Mr. Jim a name. He did not hear any interaction between the two before his attention was drawn to them. He was not watching Mr. Ball or Mr. Jim throughout the evening.
110Mr. Doucette tried to restrain Mr. Jim from leaving the hall and asked him what happened but Mr. Jim did not respond at all to his question. He was there when the police arrived at the Hellenic Centre. He provided a brief statement to the police that night and two days later he gave a brief statement to the police. He did not speak to anyone except his wife after the incident and when he gave the statement to the police. P.C. Chandler testified nobody who was present when the police arrived offered any assistance or information as to who else had been involved in the altercation. It was the police evidence no one provided a statement when they arrived at the Hellenic Centre. This is in direct conflict with Mr. Doucette's and Mr. Hope's evidence and I prefer the evidence of P.C. Chandler as to the lack of cooperation of those persons who were still at the Hellenic Centre when the police arrived for the reasons I indicated above.
111A microphone stand was damaged during the altercation. He did not see how it got damaged. One of the band members brought it to Mr. Doucette's attention. Mr. Doucette saw the mic stand had a bend in it, instead of being straight. Mr. Doucette recalled the band being on the same level as the dance floor.
112Mr. Doucette was unable to say what caused the cut to Spencer's face.
113Mr. Doucette thought he talked to the police when they came to investigate. He believed he told them who was involved. He did not know Mr. Jim's name and would have described him as the Asian guy. When he was advised by Mr. Lacy the police testified no one told them who was involved in the altercation when they attended, Mr. Doucette indicated he was "pretty sure" he told them what he saw. He had no reason not to tell the police. He knew the Asian guy was Danielle's husband but he did not tell the police this information. He did not know why he did not tell this to the police. He was not drunk and the alcohol he consumed did not affect his memory.
114Nobody helped him pull Mr. Jim off Mr. Ball. Shannon Hope was there but he did not help. He did not see Mr. Hope take Mr. Jim over to a chair and have him sit on it. It was his position Mr. Jim was leaving the hall and Mr. Doucette had to run over and apprehend him. He only had him against the wall between his arms asking what happened and Mr. Jim never said a word to him. He always remembered this interaction with Mr. Jim. He agreed he did not tell the police about the question he asked Mr. Jim or the fact Mr. Jim made no response. He did not even mention the interaction he had with Mr. Jim.
115He did not recall Mr. Ball getting up and trying to retaliate against Mr. Jim and having to be held back. Mr. Doucette in my view was evasive in his answers concerning whether Mr. Ball was held back by others from retaliating against Mr. Jim. He initially implied others held Mr. Ball back but then said he did not recall if that happened.
116It is also my view Mr. Doucette's evidence concerning his running and stopping Mr. Jim was disingenuous as he was clearly, on his original evidence, trying to prevent him from leaving until the police arrived. Yet he let him go. It was put to him he thought Mr. Jim got the better of Mr. Ball and he was going to get into it with Mr. Jim but then thought better. Mr. Doucette's evidence on this issue in my view was also evasive. I have concerns the suggestion put to Mr. Doucette could be accurate.
117Prior to looking over Mr. Doucette did not know whether Spencer Ball had pushed Mr. Jim. He did not know if the two men were standing toe-to-toe. He did not know who instigated the physical part. He would have to accept what he saw was one person getting the better of another at the end of a fight.
118Mr. Doucette agreed Mr. Ball spoke to him about speaking to his civil lawyer and he spoke to an insurance adjuster and provided a statement.
The Evidence Called by the Defence
Justin Jim
119Mr. Jim testified on his own behalf. He is an engineer working at Vale in Sudbury for the past six and a half years. He recently finished an MBA program at Laurentian University. He is married to Danielle Vincent for a year and a half. They are expecting their first child. He had previously met Spencer Ball to say hello at a bar downtown. His wife had been involved with him at young lawyer's events but he had only met Mr. Ball on this one prior occasion. He did not consider him to be a friend. He had never had any issues with him prior to the 2016 Law Ball.
120On the night of the Law Ball he and his wife Danielle went to their friends, Trevor and Sarah, where a number of other lawyers and friends gathered before going to the Law Ball. Their plan was to leave their vehicle at the Hellenic Centre and take a cab home and return the next day to pick it up.
121Mr. Jim was consuming beer throughout the evening and had a glass of red wine with dinner. Some of the senior lawyers purchased shots, which were milky, for their table. He was not keeping track of the number of drinks he was consuming during the evening. Up to the end of the speeches Mr. Jim had no contact or interaction with Spencer Ball. He would describe his level of intoxication as being six to seven out of ten by the end of the speeches.
122While he was dancing he and Mr. Ball had started "chirping" at each other. Mr. Jim had ripped his pants, the backside, while he was dancing. Mr. Ball said something to the effect he was an idiot or he looked like a jackass. Mr. Jim testified he responded with, "At least I can dance." This verbal exchange lasted 20 to 30 seconds. He did not really think much about what they each had said to each other.
123Mr. Jim heard Mr. Ball testify that he had no contact with Mr. Jim during the evening until the altercation, this was not correct. Mr. Jim testified Mr. Ball came up to the table where he and his wife were sitting when the band went on a break and said to his wife, "I've always wanted to date you. I've always been into you." Mr. Jim described himself as being pretty shocked, as he was sitting right there and it was just he and his wife sitting at the table. Mr. Jim testified he stood up and pushed Mr. Ball and said, "What the fuck is wrong with you?" Mr. Ball responded that she was too good for him or Mr. Jim was not good enough for her. Mr. Jim said he told Mr. Ball to, "Get the fuck out of here" and Mr. Ball left.
124This incident occurred about 20 to 30 minutes after Mr. Ball made comments about his pants ripping. Mr. Jim testified he and his wife talked about what Mr. Ball had said. They both agreed Mr. Ball was a "douche." A few minutes after this Mr. Jim was standing with his wife looking onto the dance floor and he saw Mr. Ball dancing with Jen Dowdall. He saw Mr. Ball groping her, he had his hand on her ass, inserting his fingers a little bit. He did not know Ms. Dowdall at all and did not know she was married. They were dancing in the centre of the dance floor.
125Mr. Jim got up and went to where Mr. Ball was and said to him, "You're a fucking creep." I said it because it was gross. When Mr. Jim had been talking about what Mr. Ball had said to his wife, she told him Mr. Ball was engaged and his fiancée was in Toronto at the ballet. Mr. Ball responded, "Mind your own business." Mr. Jim testified they were standing face to face. Mr. Ball pushed him away and Mr. Jim pushed him back. They were saying things to each other but he cannot recall what each of them said.
126Mr. Jim testified he then punched Mr. Ball in the head because he thought their interactions had been escalating throughout the evening and he believed Mr. Ball wanted to start fighting. Mr. Jim said he had never been involved in a fight before. Mr. Jim testified he only punched Mr. Ball one time. Mr. Jim then pushed him and kept pushing him until they fell down. They had been standing to the left of the stage if you were looking at it. The band was on the stage. After they fell Mr. Jim was not sure what happened but he kept going was his belief.
127Mr. Ball was on the ground and Mr. Jim was on top of him after they fell. He testified he was not aware if Mr. Ball was unconscious. The whole incident lasted no more than 10 seconds from the beginning until someone pulled him off Mr. Ball. Mr. Jim was unaware if Mr. Ball was injured. He did not know whether one of his punches caused the injury to Mr. Ball's face he saw in the photographs that required stitches. He did not intend to cause that injury. He did not intend to knock Mr. Ball out. If Mr. Ball was knocked out and Mr. Jim knew he was knocked out he would not have continued to punch him. He believed Mr. Ball punched him in the chest, he saw Mr. Ball's fist coming up toward his face. It happened very quickly.
128Mr. Jim testified he was shocked when he realized Mr. Ball was injured and bleeding. After he was pulled off Mr. Ball, Mr. Jim's wife told him to, "Go sit the fuck down." He sat down on a chair and he stayed there for several minutes. At that point a senior lawyer, Stephanie Baker, came over to him and his wife and said there was a cab and that they should get in it and leave.
129As he was sitting on the chair someone from the band came up and asked him to repay them for the mic stand that was broken. Mr. Jim got his email address and told him he would transfer the 150 bucks the guy said it cost. It was Mr. Jim's understanding the mic stand broke when they fell on it.
130The other person he had interaction with as he was leaving was Mr. Doucette. Mr. Doucette grabbed Mr. Jim by his collar, by the front of his shirt and threw him up against a wall and said he was not going anywhere.
131When he and his wife got in the cab, Rene Gregor got him to roll down the window and told him he should go back in and apologize. So he went back in with Rene Gregor and he tried to apologize to Mr. Ball but Mr. Ball told him that Mr. Jim's life was over and was ruined.
132Mr. Jim was shown Exhibit 2 and asked if he knew what these pictures were of. Mr. Jim testified that was a picture of his hands in his porch. His wife took these pictures. They were taken a day or two after the incident. The injury that can be observed in the photograph to his right hand in the area between his index finger and his thumb and it was there before the incident took place. He had been unloading pipe with his buddy at work and it kicked into his hand. Mr. Jim testified he did not believe this injury was related to the incident.
133Mr. Jim testified when he punched Mr. Ball after they each pushed one another, he believed they were going to fight with each other. When the altercation occurred Mr. Jim estimated his level of intoxication would have been an 8 out of 10.
134He has been put on notice that Mr. Ball plans to sue him but he has not issued a statement of claim yet.
135Mr. Jim agreed this Law Ball up to the altercation had been one of the better Law Balls. He had been having a good time. There were probably 20 to 25 people in attendance at Trevor and Sarah's house. It was chosen because it was the closest to the Hellenic Centre. Mr. Jim testified he had a couple of beer at this gathering before attending the Law Ball. They were there for a half hour to an hour.
136When they got to the Law Ball the cocktail hour was almost over. He had a glass of champagne that was provided. He testified he had a few beer before dinner. He agreed he was not concerned about how much he was drinking. He had some red wine with dinner and it could have been two glasses. After dinner the senior lawyers had shots delivered to the table and he had one. He agreed he had a significant amount to drink at this party.
137He agreed but for the alcohol he drank he would not have engaged in a fist fight with Spencer Ball. He conceded he was not exercising sound judgment as a result of his alcohol intake. He agreed his memory was likely quite foggy as a result of the alcohol. He agreed there were rumours and discussion about the incident afterwards and it may have had an unintentional impact of his recollection of events.
138Mr. Jim agreed with the Crown when Mr. Ball was commenting on his ripped pants he was probably thinking who the hell was he to say this to him, as they did not really even know each other. He agreed they were both "chirping" each other. Mr. Jim thought it was kind of weird but it was over quickly.
139When Mr. Ball came and spoke to his wife, Mr. Jim thought it was pretty gross and he stood up, pushed Mr. Ball and said, "What the fuck is wrong with you." Mr. Ball then said to him, "She's too good for you." Or he said to his wife, "He's not good enough for you." Mr. Jim told Mr. Ball to "Get the fuck out of here." Mr. Jim admitted Mr. Ball's comments were upsetting to him. It was only a few moments later he saw him dancing with Ms. Dowdall and groping her buttocks. He took it upon himself to tell Mr. Ball this was not acceptable behaviour. Mr. Ball was grabbing Ms. Dowdall's buttocks and inserting his fingers into her buttocks, over her dress.
140Mr. Jim testified he disagreed if he had not been drinking he probably would have done nothing about what he observed. He believed he would have gone to Mr. Ball and said his behaviour was inappropriate. Mr. Ball was dancing at the time with Ms. Dowdall. He approached Mr. Ball and told him, "You're a fucking creep." His response was to say, "Mind your own business" and he pushed Mr. Jim. Mr. Jim testified he pushed Mr. Ball back. They were saying things to each other but Mr. Jim cannot recall what was said.
141Mr. Jim believed because of how things had been escalating between him and Mr. Ball over the evening they were going to fight. He punched him once in the facial area and continued to push him. It was a closed fist punch with his right hand. Mr. Jim was pushing him towards the stage and they both fell with Mr. Jim on top of Mr. Ball. Mr. Jim testified he punched him a couple of times more with his right hand before he was pulled off. When he punched Mr. Ball, Mr. Ball was kind of in a crunch position. He did not know if the back of Mr. Ball's head struck the floor. Mr. Jim was straddling Mr. Ball after they fell to the floor. Mr. Ball conceded in his evidence he had no injury to the back of his head.
142It was Mr. Jim's position that the whole incident happened very fast. Mr. Jim was not sure of the number of times he punched Mr. Ball on the ground because of his intoxication and the quickness of the whole incident.
143This was not how he would generally conduct himself. He agreed he was angry and momentarily lost control of himself. He agreed he was not holding back his punches. Mr. Ball did not land any punches on him of any significance. When they were on the ground he believed Mr. Ball punched him in the chest.
144When Mr. Doucette pulled him off Mr. Ball, Mr. Jim agreed this was an appropriate thing for Mr. Doucette to do. It was a good thing Mr. Doucette intervened. When he grabbed him later and threw him against the wall this was not reasonable as Stephanie Baker had told him and his wife to take a cab that was out front and leave.
145Mr. Jim injured his hand at work a couple of days before the Law Ball. Mr. Jim did not believe his knuckles were swollen. It was possible his knuckles were swollen from punching Mr. Ball.
146Ms. Gregor suggested he should apologize and he was willing to do that but when they went back into the hall Mr. Ball began to shout at Mr. Jim when he saw him. Mr. Jim apologized to his wife and Stephanie Baker and if he could take the whole incident back he would.
147Mr. Jim did not agree with the Crown that Mr. Ball gave no indication he wanted to engage in a fight with him. He agreed he approached Mr. Ball on the dance floor. Mr. Ball pushed him when Mr. Jim went to him about his behaviour towards Ms. Dowdall.
148In re-examination Mr. Jim testified his memory was not fuzzy about whether he spoke to Mr. Ball that night. He was not fuzzy as to whether he saw Mr. Ball groping Jennifer Dowdall. He was not fuzzy about the two of them "chirping" each other during the evening. He was not fuzzy about the verbal altercation on the dance floor that led to them pushing each other. He was not fuzzy about whether this was a situation where they both were ready to go. He would not have attacked Mr. Ball for no reason. Mr. Ball was getting angry with Mr. Jim because of their interactions with each other.
149Mr. Jim was not evasive in giving his answers during his evidence. His answers were responsive to the questions asked. It was my view he was forthright and candid and conceded things that were against his interest. Mr. Jim was calm and measured in giving his answers and did not engage in any histrionics. I will deal with Mr. Jim's evidence again when I address whether the Crown has proven the charge of assault causing bodily harm beyond a reasonable doubt.
Sarah Waltenbury
150The defence also called Sarah Waltenbury, whose husband, Terry Waltenbury, was the MC at the Law Ball. Ms. Waltenbury did not consume any alcohol and she indicated she was testifying pursuant to a subpoena. She did not want to be testifying. She did not know Justin Jim but she knew his wife, Danielle Vincent, although they were not personal friends. She knew Spencer Ball but they were not friends either. Shannon Hope built their house but they were not close friends. She knew Shannon's wife, Jennifer.
151She was not present when the altercation occurred and was not present when the police arrived. She and her husband left approximately 10 minutes before the incident occurred.
152Prior to leaving, she was sitting at a table when she saw something happen on the dance floor. She saw Jennifer and Spencer dancing, they were dancing close. She saw Spencer Ball put his fingers between Jennifer's buttocks. Shannon was facing the dance floor but his view may have been obstructed by others who were dancing. Ms. Waltenbury testified she was shocked by what she saw because Jennifer was married. She believed it was inappropriate and it made her feel uncomfortable. She did not see any reaction by Jennifer, she did not push Mr. Ball's hand off or him away.
Renee Gregor
153The final witness called by the defence was Renee Gregor, a lawyer who was in attendance at the Law Ball. She was a friend and work colleague of Danielle Vincent, although she would not call her a close friend as they had never been to each other's homes. They were both criminal lawyers and work friends. She was consuming alcohol at the Law Ball and would not have driven home. She estimated her level of sobriety as being a five out of ten. She did not know Justin Jim other than to know he was Danielle's husband. She knew Spencer Ball as he was a lawyer at Weaver Simmons when she started working there. The person she dated for a year was a good friend of Spencer's so she saw Mr. Ball socially as well as at work.
154At some point during the evening, towards the end of the night, Ms. Gregor was dancing with Danielle Vincent on the dance floor. She observed Justin Jim and Spencer Ball interacting with each other on the dance floor. They were very close, she saw it as confrontational between the two, as they were angry, verbally arguing and close enough so they were touching each other. The dance floor was dark as the band was playing. The interaction looked to her as being unfriendly. She danced through them to break them up and separate them. It was her belief from what she saw that they were going to fight each other and this was why she danced through them. Her typewritten statement to another lawyer indicated they were pushing each other but her recollection now was this was not an accurate word to describe the interaction she observed. It looked like they were arguing and getting very close to each other, to the point of touching each other.
155She and Danielle continued dancing either until the end of the song or the end of another song. She went over to a table to the left of the stage. She was facing away from the dance floor, such that her back was to it. She was talking and socializing with the people sitting at this table. At some point she heard a commotion behind her and when she turned she saw Danielle by a table on the other side of the dance floor crying and upset. Ms. Gregor went to speak to her. After speaking with her, Ms. Gregor observed Mr. Ball sitting on the floor. He looked to be injured as his face was bleeding, although she could not see where it was coming from. Ms. Gregor did not see the event that caused Mr. Ball to be on the floor.
156Ms. Gregor had not seen Mr. Jim and Mr. Ball interacting with each other before the incident she described. The confrontation she observed was separated by some period of time to her hearing the commotion when she was sitting with her back to the dance floor. She may have danced one more song with Danielle, no more than that. Then she went and sat at this table where she was talking with the people there until she heard the commotion. They could have been talking 10 minutes before she heard the commotion. When she turned around her attention was fixed on Danielle and she went to her because she was crying.
Position of the Parties
157It is the position of the defence that the Crown has failed to prove beyond a reasonable doubt that the physical altercation between Mr. Jim and Mr. Ball was not a consensual fight. Further, the Crown has failed to prove that Mr. Jim intended to cause Mr. Ball serious bodily harm. Mr. Lacy argued Mr. Ball's evidence should not be accepted and it would be unsafe to convict Mr. Jim based on his evidence. Mr. Lacy highlighted five areas of Mr. Ball's evidence that demonstrated he was not a credible or reliable witness.
(a) The manner of his testifying and his demeanour in the courtroom demonstrated he was trying to be an advocate rather than as a witness attempting to assist with establishing the facts. When objections were made by Mr. Lacy during Mr. Ball's evidence in-chief, Mr. Ball on a couple of occasions provided his own input against Mr. Lacy's objection. He was often not being responsive to the questions asked. He impugned Ms. Gregor's evidence without knowing what her evidence was and testified she had a vendetta against him and his fiancée and would do anything to seek vengeance against Mr. Ball, including lying to the court. Mr. Lacy submitted all of these things spoke negatively to Mr. Ball's credibility.
(b) Mr. Ball's evidence was inconsistent with other credible and reliable evidence. Mr. Lacy pointed to six examples of this.
(c) Mr. Ball's version of what happened between him and Mr. Jim is objectively improbable and does not accord with common sense.
(d) Mr. Ball had a motive to extricate himself from there being a consent fight.
(e) Mr. Lacy pointed to a number of additional areas where Mr. Ball's evidence could only be described as incredible and not worthy of belief.
158Mr. Lacy submitted this case involved both the consumption of alcohol and the exercise of bad judgment. Two young men allowed bravado and ego to get the better of each of them. Further, what usually happened in a consent fight was someone ended up being the victor and somebody ended up getting hurt. Mr. Lacy argued on the Crown's evidence I should be left with a reasonable doubt, quite apart from considering Mr. Jim's evidence. It was his submission I should accept Mr. Jim's evidence it was a consent fight between him and Mr. Ball and that he did not intend to cause Mr. Ball serious bodily harm. At the very least, Mr. Jim's evidence should raise a reasonable doubt.
159The Crown argued there were three paths available for the Crown to prove Mr. Jim was guilty of assault causing bodily harm beyond reasonable doubt.
(1) If I accepted Mr. Ball's evidence that Mr. Jim's assault was an unprovoked attack on Mr. Ball, which rendered him unconscious and causing the serious bodily harm;
(2) If I find there was some kind of consensual fight and Mr. Jim intended to cause bodily harm to Mr. Ball because of comments made to Mr. Jim's wife; or
(3) If I find there was some kind of consensual fight, the consent was vitiated once Mr. Ball was unconscious on the dance floor and Mr. Jim continued to punch him knowing he was unconscious.
160The Crown submitted I could find Mr. Jim guilty of assault bodily harm in light of his own admission he was angry at Mr. Ball and momentarily lost control. Further, Mr. Jim admitted he could not recall how many times he punched Mr. Ball because of his level of intoxication and the quickness of the incident itself. The Crown also argued there was a logical inference that Mr. Jim intended to cause Mr. Ball some damage because he was punching him.
Analysis
161It was agreed by both counsel the injury suffered by Mr. Ball, namely, the cut on his cheek below his left eye, which required stitches, amounted to serious bodily harm under s. 2 of the Criminal Code. Further, it was agreed by both counsel the injury to Mr. Ball was caused by the physical altercation engaged in between Mr. Jim and Mr. Ball.
162At the commencement of this trial I was advised there were two issues to be determined, first, whether the altercation between Mr. Ball and Mr. Jim was a consent fight or whether Mr. Jim "sucker-punched" Mr. Ball without any warning or provocation and second, whether Mr. Jim intended to cause Mr. Ball serious bodily harm. In order to determine whether the Crown has proven beyond a reasonable doubt that Spencer Ball did not consent to a physical fight with Justin Jim I must consider the totality of the evidence, applying the principles enunciated in R. v. W. (D.), supra, referred to above.
163As reflected in my discussion of the facts, Mr. Jim's account flowed in a natural way and was held together by details that gave it a common sense coherence. His evidence was supported and corroborated by both Crown and defence witnesses. He was not evasive in his answers and clearly conceded a number of things that were contrary to his interests. He admitted he had consumed a fairly large quantity of alcohol over the course of the evening. He admitted the comments made by Mr. Ball to his wife upset him and made him angry. He agreed but for his consumption of alcohol he would not have engaged in a fist fight with Mr. Ball as this was completely out of character for him. He had never been involved in a fist fight previously. He agreed he was not exercising sound judgment as a result of his consumption of alcohol. He did not agree but for his consumption of alcohol he would not have confronted Mr. Ball concerning the inappropriate behaviour Mr. Ball exhibited towards Jennifer Dowdall on the dance floor when he was groping her buttocks, as he believed this behaviour was "gross."
164It is my view the determination of whether Mr. Ball inappropriately groped Ms. Dowdall's buttocks is at the very centre of my assessment and determination as to whether the fight between Mr. Jim and Mr. Ball was consensual or was an unprovoked, "out of the blue" attack by Mr. Jim on Mr. Ball. A third alternative is whether I have a reasonable doubt on this issue.
165Mr. Ball denied touching Jennifer Dowdall inappropriately while they were dancing. I do not accept his denial in light of Ms. Waltenbury's evidence as to her observations of Mr. Ball groping Ms. Dowdall's buttocks by inserting his fingers between her buttocks. I have described the details of Ms. Waltenbury's evidence above and I found her to be a credible and reliable witness such that I accept her evidence in its entirety. She was forthright in her evidence, she did not want to testify about what she observed and was only in Court because of a subpoena. She was not a friend of Justin Jim, she was not evasive in the least, and her evidence was not seriously challenged or diminished in any way in cross-examination. I accept her evidence of her observations, which puts a lie to Mr. Ball's denials. Consequently, I find the sexually inappropriate behaviour of Mr. Ball groping Ms. Dowdall's buttocks occurred.
166In addition, Ms. Dowdall, in cross-examination, did not testify Mr. Ball had not touched her inappropriately. She conceded it could have happened that Mr. Ball touched her inappropriately and although she did not think he would put his hand up her dress, she could not rule it out. In my view this was a significant and telling concession by Ms. Dowdall. The evidence of Ms. Waltenbury and Ms. Dowdall corroborated Mr. Jim's evidence as to his observation of Mr. Ball inappropriately groping Mr. Dowdall's buttocks, which provides support for the reason he went to where Mr. Ball was dancing and verbally confronted him.
167As I indicated above, in my discussion of the facts, I further find, based on the totality of the evidence, that Mr. Ball inappropriately groped Ms. Dowdall's buttocks on at least two separate occasions, given the fact Ms. Waltenbury had already left the Law Ball before the physical altercation between Mr. Jim and Mr. Ball occurred.
168Mr. Ball repeatedly testified he would never become involved in a consent fight at the Law Ball because of the judiciary who were present, as this would be career suicide. In light of Ms. Waltenbury's observations concerning Mr. Ball groping Ms. Dowdall's buttocks by inserting his fingers in between her buttocks, Mr. Jim's evidence of his observing the same conduct just before he confronted Mr. Ball and Ms. Dowdall's concession Mr. Ball may very well have touched her buttocks inappropriately while they were dancing, it is my view the veracity, reliability and credibility of Mr. Ball's repeated assertions that he would never agree to a consent fight in front of the judiciary who were present at the Law Ball was completely unbelievable and without merit. Consequently, the fact Mr. Ball was quite prepared to take advantage of an intoxicated woman by engaging in what, on the evidence, clearly could amount to a sexual assault, in front of the judiciary and the other lawyers attending the Law Ball puts a lie to his position he did not engage in a consent fight with Mr. Jim as it would be career suicide.
169Mr. Jim maintained and was not shaken in his position that the verbal interactions throughout the course of the evening between Mr. Ball and himself had escalated to the point where after he confronted Mr. Ball over his behaviour towards Ms. Dowdall, he believed he and Mr. Ball were going to engage in a consent fight. In fact, the Crown used Mr. Jim's evidence respecting the escalating anger and animosity between the two men by accepting there was a consent fight in two of the scenarios he posited and argued Mr. Jim intended to cause the bodily harm or Mr. Jim continued to punch Mr. Ball knowing he was unconscious and was reckless as to whether serious bodily harm was caused.
170Mr. Jim described Mr. Ball as becoming very angry when Mr. Jim approached him and Ms. Dowdall concerning Mr. Ball's inappropriate behaviour. This caused Mr. Ball to tell Mr. Jim to, "Mind [his] own business" and he pushed Mr. Jim. Mr. Jim responded by pushing Mr. Ball back. After they pushed each other Mr. Jim believed the fight was on and he punched Mr. Ball first. Mr. Ball maintained this first punch was to his temple and was not the cause of the cut to his left cheek. Mr. Ball testified everything went black after this punch and he really did not know what took place until he came to on the dance floor looking up into the faces of Edmund Paquette and Mike McNamara. I will address Mr. Ball's evidence regarding his state of consciousness in more detail later in my reasons.
171No one other than Mr. Ball and Mr. Jim provided any testimony as to how the altercation began. Therefore, this is primarily a two-witness credibility case in terms of the issue of whether it was a consent fight. As I indicated the rule of reasonable doubt applies to the issue of credibility. I recognize this must not devolve into a mere credibility contest and I must consider and assess the evidence of Mr. Ball and Mr. Jim in light of the totality of the evidence, which permits comparing and contrasting the evidence of the witnesses, including comparing Mr. Jim's evidence with Mr. Ball's evidence.
172Before I examine and assess Mr. Ball's and Mr. Jim's evidence on this issue of whether the altercation was a consent fight, I will assess the extent to which the other witnesses' evidence addressed this issue. Ms. Dowdall testified she and Mr. Ball were dancing, she saw Mr. Jim coming towards them and the next thing she knew Spencer Ball was on the ground with Mr. Jim on top of him, punching him. Despite being right there she was not able to provide any evidence as to how the altercation began or how Mr. Ball ended up on the floor with Mr. Jim on top of him. Mr. Hope testified he was in conversation with Mr. Doucette when Mr. Doucette stopped the conversation by saying there was a fight on the dance floor and he turned to look at what he described as a scuffle between two persons. Neither Mr. Hope nor Mr. Doucette observed how the altercation began and both men's observation began at some point and time after the physical altercation began. Mr. Hope saw what he described as a rugby tackle by Mr. Jim towards Mr. Ball or two men wrestling, which caused them both to fall onto ground by the stage. Mr. Hope described it as a fight between two people. Mr. Doucette testified he would have to accept what he saw was one person getting the better of another at the end of a fight. No other witness was called during this trial who saw how the fight began.
173It is almost inconceivable and inexplicable that Ms. Dowdall did not see how the altercation between Mr. Jim and Mr. Ball started or how it continued, as she was right there, dancing with Mr. Ball. Both Mr. Ball and Mr. Jim testified Ms. Dowdall was present when the altercation started. It is my view there is a reasonable inference available on the totality of the evidence that Ms. Dowdall did not describe how the altercation began because Mr. Jim was confronting Mr. Ball concerning Mr. Ball's inappropriate behaviour towards her. Ms. Dowdall and Mr. Ball described themselves as being close friends at the time of the Law Ball. Mr. Ball spoke to Ms. Dowdall before she provided her statement to the police and he told her that she was an important witness for his civil suit. Ms. Dowdall testified she called Mr. Ball on November 20 because she was concerned for him as he went to the hospital and they discussed what happened. I find there is also a reasonable inference the gap in Ms. Dowdall's evidence between her dancing with Mr. Ball and his being on the floor with Mr. Jim on top of him was because Ms. Dowdall did not want to provide evidence detrimental to her friend's position that he was "sucker-punched." I have found Mr. Ball inappropriately groped Ms. Dowdall's buttocks, which further strengthens this reasonable inference and provides an air of reality to Mr. Jim's belief this was a consent fight.
174On the evidence I also find Mr. Ball and Ms. Dowdall were dancing closely together when Mr. Ball was groping her buttocks, just prior to Mr. Jim confronting him. This would have made it difficult for Mr. Jim to "sucker-punch" Mr. Ball in the temple with such force that Mr. Ball was knocked to the dance floor without involving Ms. Dowdall in some way, either by Mr. Jim first pushing her out of the way or Mr. Jim striking or coming into contact with her as well, given how closely Ms. Dowdall and Mr. Ball were dancing. Ms. Waltenbury also described them dancing very closely when she made her observations.
175Ms. Gregor's evidence clearly described an angry, verbal confrontation between Mr. Jim and Mr. Ball, where they were so close to each other they were touching. She saw the confrontation as being unfriendly and she believed they were going to fight unless something was done, so she danced through them, which caused them to separate. There was no fight between the two men at this point of the evening. However Ms. Gregor estimated 10 to 15 minutes later she heard a commotion on the dance floor and when she turned and looked her attention was drawn to Danielle Vincent, her friend, who was upset and crying on the other side of the dance floor. She went to Ms. Vincent and she did not see Mr. Jim or Mr. Ball. After speaking with Ms. Vincent she saw Mr. Ball sitting on the dance floor with a bloody face.
176It is my view Ms. Gregor's evidence puts another lie to Mr. Ball's evidence that he and Mr. Jim did not have any negative interactions with each other during the course of the evening. This confrontation could very well have been after Mr. Ball made the comments to Mr. Jim and his wife. Mr. Jim agreed he was upset and angry as a result of Mr. Ball's comments. Ms. Gregor testified she was dancing with Mr. Jim's wife, Danielle, when she noticed this unfriendly, angry, verbal argument between the two men. I do not believe Ms. Gregor was lying or that she had a vendetta against Mr. Ball and his fiancée. She gave her evidence in a straightforward, fair and forthright manner. She was careful in her descriptions of her observations and corrected herself concerning a much earlier statement where she had described the two men pushing each other, which she testified would not be an accurate description. This enhanced Ms. Gregor's credibility from my viewpoint and I accept her evidence of her observations of Mr. Ball and Mr. Jim on the dance floor.
177A further concern about Mr. Ball's credibility is raised by the fact he knew Edmund Paquette was potentially an important and significant witness, as was Mr. Ball's friend Mike McNamara, in respect of how the altercation started, given those two individuals, according to Mr. Ball, were both looking down at Mr. Ball when he testified he came to on the dance floor. Yet neither of these witnesses were called by the Crown and Mr. Ball conceded he never provided Edmund Paquette's name to the police because Mr. Paquette told Mr. Ball he did not want to be involved. Mr. Ball also added in his police statement a hearsay comment about Mr. Jim getting in a number of punches when Mr. Ball was on the ground, without identifying Mr. Paquette as the source, which in my view demonstrated Mr. Ball had an agenda when he provided his police statement. This certainly reduced the reliability and credibility of Mr. Ball's evidence.
178It is also my view, on the evidence, there was no logical or common sense reason for Mr. Jim to suddenly, "out of the blue," without warning and without provocation run up to Mr. Ball while he was dancing with Ms. Dowdall and "sucker-punch" him. This does not accord with common sense and is objectively improbable. Mr. Ball's evidence was he had no contact or interaction throughout the entirety of the evening with either Justin Jim or Danielle Vincent and he really did not know either of them beyond being casual acquaintances. He may have said hi to Mr. Jim on one occasion at a previous law gathering. Mr. Jim had no reason or motive to run up and "sucker-punch" Mr. Ball. The Crown argued he did not have to provide a motive for why Mr. Jim assaulted Mr. Ball without provocation, however, the lack of any motive or reason on Mr. Jim's part leads to a reasonable inference, on all of the evidence, Mr. Ball's version does not accord with common sense or human experience and is incredible and objectively improbable.
179What does accord with logic and common sense was Mr. Jim's version of the events in terms of his interactions throughout the evening with Mr. Ball, which forms the underlying basis for their physical altercation on the dance floor.
(a) Mr. Jim split his pants on the dance floor earlier in the evening, which led to some verbal interaction between the two men with the two men "chirping" each other. Mr. Ball testified he saw Mr. Jim dancing and opined that Mr. Jim was a good dancer; which raises the question why he thought this was an important observation to include in his description of the events of the evening;
(b) Mr. Ball came up to Justin Jim's wife, in his inebriated state, made inappropriate comments and advances towards her in the presence of Mr. Jim, which led to a further verbal altercation between both men. This caused Mr. Jim to become upset and angry with Mr. Ball;
(c) Mr. Jim talked about Mr. Ball with his wife and they both agreed Mr. Ball was a "douche" because of his comments. Mr. Jim learned that Mr. Ball was engaged but his fiancée was in Toronto at the ballet;
(d) Mr. Jim shortly after this incident observed Mr. Ball inappropriately groping Ms. Dowdall's buttocks and as a result, he walked over to where Ms. Dowdall and Mr. Ball were dancing and told Mr. Ball he was a "fucking creep;"
(e) A pushing back and forth was started by Mr. Ball, after he told Mr. Jim to, "Mind his own business," which escalated into a consent fist fight, where Mr. Jim punched Mr. Ball first in the temple and then engaged in pushing him (a rugby tackle or a wrestling scuffle) until both men fell to the ground by the stage. Mr. Jim punched Mr. Ball two or more times before he was pulled off of him.
180In my view, Mr. Jim's description of the sequence of events, which demonstrated an escalation of animosity and anger between the two men and on Mr. Jim's evidence culminated in a consensual fight, accords with human experience and common sense. Further, the evidence of Shannon Hope's observations of both Justin Jim and Spencer Ball moving towards the stage in a "rugby tackle" or "wrestling" motion are consistent with Mr. Jim's description of what occurred after he first punched Mr. Ball. I find Mr. Ball did not immediately fall to the dance floor as he testified, Mr. Jim was struggling with him and pushing him such that they moved across the dance floor for some distance before they both fell. It is also of interest that Mr. Doucette described his first observations of the physical altercation between the two men as his observing one person getting the better of another person at the end of a fight.
Credibility Assessment of Mr. Ball
181There were numerous occasions in Mr. Ball's evidence where he was evasive, he attempted to obfuscate, he clearly had an agenda, where he was less than forthright and candid, and where I believe, on occasion, he outright lied in his testimony. The following are a number of examples where I believe Mr. Ball's credibility and reliability left much to be desired.
1. Mr. Ball testified he told the police the person who assaulted him was Danielle Vincent's husband. However, P.C. Chandler testified Mr. Ball told them he did not know who had assaulted him. Mr. Ball told the police somebody else who was at the event would have to provide the person's identity. Both of these versions cannot be true. If Mr. Ball told the police the person who assaulted him was Danielle Vincent's husband there would be no reason for the police not to write this down. Their notes indicated Mr. Ball did not know who punched him. Further, Mr. Ball testified Edmund Paquette told him when he was coming to on the dance floor that "Justin got quite a few punches in," which meant Mr. Ball knew Danielle's husband's first name was Justin, yet he did not tell this to the police. In my view this was probably the most significant piece of information Mr. Ball could have told the police, yet he withheld it from them. It is difficult to discern a legitimate reason why Mr. Ball would do this. Further, the evidence clearly established that Mr. Ball knew exactly who the person was he alleged "sucker-punched" him as he sent a Linked-In message to Danielle Vincent that her husband was going to jail at 2:05 a.m. on November 20. He had never sent Daniel Vincent a private message through social media of any kind previously.
2. He was asked in cross-examination whether he provided this message to the police or the Crown. His answers on this issue were very evasive and it was clear he did not want to concede he had not provided the Linked-In message to the police. His final answer that it was "very likely" he had not given the message to the police demonstrated his evasiveness and lack of responsiveness on this issue. I find when Mr. Ball was interviewed by police he did not provide the Link-In message he sent to Danielle Vincent. Further, he only provided it to the Crown when the Crown questioned him about it just before the start of the trial as a result of the defence advising the Crown such a message was sent by Mr. Ball. Again his initial responses were not forthcoming or responsive to Mr. Lacy's questions. In fact, Mr. Ball testified he "freely produced" the Linked-In message to the Crown, which was a clear example of Mr. Ball not being forthright with the Court.
3. A further area where Mr. Ball was evasive and not forthright in his evidence had to do with his failure to respond to the police who were attempting to arrange an interview. Mr. Ball testified he called the police to set up the interview yet, according to the police, Mr. Ball did not call them on November 20 or November 21 and further, despite the police calling his cell phone on numerous occasions on those dates, Mr. Ball did not answer his phone or call the officers back. I accept the evidence of P.C. Chandler that the police attempted to call Mr. Ball numerous times on November 20 and 21. The police were finally able to connect with Mr. Ball on November 21, but only after they contacted his friend, Sophie Mageau, and told her to contact Mr. Ball to indicate the police were trying to get hold of him to set up an interview.
4. Mr. Ball maintained he was the one who called the police to arrange the interview. He was 100% sure he was the one who called the police. He testified the police must have copied his cell number down incorrectly when he was advised the police could not reach him for a day and a half. When he was confronted with P.C. Chandler's evidence, he changed his evidence to say he had called the police station on November 21 but the officers were not available so he left a message and they called him back. This was the first time Mr. Ball had ever indicated the officers were not available to take his call and he left a message. He maintained this occurred on November 21. I find Mr. Ball's evidence on a relatively simple, non-controversial issue was evasive and it demonstrated in my view Mr. Ball was making things up as he went along.
5. Mr. Ball attempted to provide corroborating evidence of his sobriety by testifying that the police officers told him during his interview it was their opinion Mr. Ball, at the Hellenic Centre, was not showing any signs of impairment, he appeared to be coherent, not slurring his words, and not having any problems. However, his evidence was not supported by P.C. Chandler. P.C. Chandler provided no opinion as to Mr. Ball's state of intoxication or sobriety when the police met him at the Hellenic Centre. It was P.C. Chandler's opinion Mr. Ball was in shock when he spoke to him at the scene and given the brief interaction the police had with Mr. Ball in the back of the EMS vehicle, it is unlikely they would have formed any opinion as to Mr. Ball's sobriety. P.C. Chandler was not asked whether he had expressed to Mr. Ball during the interview on November 21 he thought, in effect, Mr. Ball was sober when he spoke to Mr. Ball at the scene. An agreed statement of fact was provided by Mr. Lacy, which established the police had no record of any discussions with Mr. Ball concerning his alcohol consumption. I find Mr. Ball testimony on this issue was not truthful.
6. Mr. Ball testified on numerous occasions he was not drunk and he knew exactly how much he had to drink, despite there being nothing in his written statement to the police and his acknowledgement he knew the importance of whether he was intoxicated prior to the physical altercation. When confronted with the police evidence in cross-examination, Mr. Ball once again changed his evidence and testified he told the officers about his consumption of alcohol verbally, yet there was nothing to this effect in the officer's notes and in the agreed statement of facts, both officers had no recollection of such a conversation. I do not believe Mr. Ball's evidence on this issue, as it is inconsistent and contradictory to the evidence of the two Crown witnesses referred to below, who were in a position to know Mr. Ball's level of sobriety because of their interactions with him, particularly Ms. Dowdall, whose evidence I accept on this issue. Further, the police evidence puts a lie to Mr. Ball's assertions on this issue.
(a) Jennifer Dowdall testified it was her opinion Spencer Ball was drunk or intoxicated when she was dancing with him. She had observed him previously, on numerous occasions, when he was drunk, his level of sobriety at the Law Ball was similar. Ms. Dowdall described herself as being drunk and said Mr. Ball was in a similar intoxicated state as herself.
(b) Shannon Hope also described Mr. Ball consuming alcohol during the evening of the Law Ball and it was his opinion Mr. Ball was in the same condition as his wife, who he believed to be under the influence of alcohol.
It is my view this was an area of Mr. Ball's evidence where he was less than truthful, where he was attempting to obfuscate and minimize his consumption of alcohol. Mr. Ball testified he did not put anything in his police handwritten statement about his alcohol consumption through inadvertence. I find from the evidence there are reasonable inferences from the totality of the evidence that Mr. Ball was intoxicated or drunk and under the influence of alcohol during the evening of the Law Ball. I also find Mr. Ball purposely minimized his level of impairment to mislead the court.
7. In contrast to Mr. Ball's repeated assertion of how little he had to drink was his evidence, which in my view demonstrated his agenda or as submitted by Mr. Lacy, Mr. Ball's manufactured narrative, that he was in effect sober and Mr. Jim was extremely drunk. Mr. Ball testified he was aware Mr. Jim and Ms. Vincent were at the Law Ball and he saw them sitting at a table on the other side of the dance floor. He testified they were having a good time. He then added he had observed them both repeatedly attending the bar and buying shots. Mr. Ball maintained this was something everyone saw and it "seemed like an excessive amount of alcohol for a Law Ball given there were judges present." It is my view this answer was not responsive to the question asked by Mr. Wood and once again demonstrated Mr. Ball's agenda.
8. When Mr. Ball was asked questions about his decision to sue Mr. Jim, the Sudbury District Law Association and the Hellenic Centre civilly, it was my view his answers were extremely evasive, untruthful and misleading. In my view he had an agenda and this became obvious when his evidence became evasive or untruthful as I set out in more detail in my discussion of the facts above. Mr. Ball had worked as a personal injury lawyer for at least five years and in my view he knew the answers to the questions concerning the value of his anticipated civil actions, whether a conviction of Mr. Jim on the charge of assault causing bodily harm would create a prima facie case of Mr. Jim's underlying conduct as he alleged and whether he knew about the notice letters his lawyer had sent out to the potential defendants. I find Mr. Ball was untruthful concerning these issues and in my view this seriously and detrimentally affected his credibility.
9. There were a number of occasions during Mr. Ball's cross-examination about the extent of his injuries where he was evasive and where he embellished the injuries he testified he sustained in this altercation. I have referred to these in my discussion of the facts. In my view the most significant embellishment related to Mr. Ball's assertion for the first time in cross-examination that there was blood coming from his ears as the result of Mr. Jim's punches. As I indicated, it was my view Mr. Ball made this injury up and pointed to one of the photographs he took of himself as showing blood coming from his ear when in reality it did not. Rather, the photograph clearly demonstrated Mr. Ball made this up. Further, Mr. Ball's evidence respecting his purported injuries demonstrated his agenda, which was to obtain a sizeable monetary judgment from his anticipated civil action.
10. Mr. Ball spoke to Ms. Dowdall and Mr. Hope prior to their providing their written statements to the police. It was Mr. Ball who determined the witnesses the police should speak to and P.C. Chandler testified they received a list of names and phone numbers from Mr. Ball. It is my view this procedure is highly suspect, especially considering the examples above where it is my view Mr. Ball clearly demonstrated his interest in the outcome of these proceedings and his agenda respecting his anticipated civil action.
11. Another area was where Mr. Ball's answer to the question, "Did he know Renee Gregor?" raised serious concerns about his credibility and reliability. He almost immediately advised he had a very negative relationship with Ms. Gregor and she had a vendetta against him and his fiancée and would say anything to seek vengeance against him. It was his position she would mislead and lie to the Court to achieve this purpose and he was prepared to assert this without even knowing what she had said. As I indicated above, I found Ms. Gregor to be a credible and reliable witness. It is my view Mr. Ball's evidence once again demonstrated his lack of credibility and candor. Further, during the questions involving Ms. Gregor possibly being a witness in this trial, I had to stop the proceedings to issue a word of caution to Mr. Ball's fiancée, who was sitting in the courtroom, because of her attempts to influence me by looking directly at me and smiling and nodding her head as Mr. Ball testified. She was also engaged in similar conduct with Mr. Ball throughout his testimony. As I expressed, this behaviour was completely improper and inappropriate. Mr. Ball's evidence concerning Ms. Gregor also demonstrated Mr. Ball becoming an advocate and having a clear agenda.
12. Finally, I find Mr. Ball had a motive to extricate himself from being involved in a consent fight. This does not support the civil action he intends to bring against Mr. Jim, the Sudbury District Law Association and the Hellenic Centre. This reflects negatively on Mr. Ball's credibility and reliability. A further motive to lie was Mr. Ball's inappropriate behaviour towards Ms. Dowdall. I agree with Mr. Lacy, it would not be an easy story to explain to his fiancée how he got drunk at the Law Ball, groped the buttocks of Ms. Dowdall and then got into a fight with someone who confronted him about his behaviour. As I have discussed above, it is my view Mr. Ball attempted to mislead the Court on this issue and was less than forthright.
Credibility Assessment of Other Crown Witnesses
182Ms. Dowdall had great difficulty remembering any details regarding the evening of the Law Ball. The most frequent answer she provided was, "I don't recall." A significant addition in her evidence was her evidence in-chief when she testified after seeing Mr. Jim come across the dance floor the next thing she remembered was Mr. Jim straddling Mr. Ball and repeatedly punching him, alternating his hands between right and left, yet this was not to be found anywhere in her statement to the police or the follow-up answers she gave to the police questions. In cross-examination she conceded all she remembered was Mr. Jim being on top of Mr. Ball and he was punching Mr. Ball repeatedly but she could not recall the number of punches or if he was using both hands. In my view there was a significant difference between these two versions, which affected her credibility.
183Mr. Hope's evidence was problematic in a number of areas. First, he testified Mr. Jim punched Mr. Ball 15 times when Mr. Jim was straddling Mr. Ball on the ground. He had not provided an estimation of the number of punches thrown by Mr. Jim in his police statement. When he was challenged on this evidence he conceded he was not counting the number of punches and when he testified he observed 15 punches he admitted he was just throwing out a number. He maintained it was more than one or two. Earlier in his evidence in-chief when he was asked if he saw any punches landing, he testified, "Gauging after I seen Spence, yes." It was right after this evidence Mr. Hope came up with the number 15. His evidence on this was quite troubling, as it reflected he was not a reliable witness. Further, given his answer as to whether he saw Mr. Jim's punches striking Mr. Ball, he was clearly drawing a conclusion from the injury Mr. Ball suffered, yet he maintained he saw the punches land.
184Mr. Hope testified he did not see what started the altercation. The first thing he saw was a rugby tackle with Justin and Spencer going towards the stage or a wrestling match. Yet he testified "it looked like the first punch had stunned him or knocked him or whatever." This is also problematic as he testified he did not see the start of the altercation and this evidence could only have come from his discussion with Spencer Ball, who testified the first punch thrown by Mr. Jim knocked him unconscious or semi-conscious. In my view, this was an example of Mr. Hope's evidence being contaminated or tainted by his conversations with Mr. Ball or others and was therefore not reliable or credible, particularly when he was passing this off as his own observation.
185A further area in Mr. Hope's evidence that was problematic was when he testified for the first time in cross-examination that he went and spoke to Spencer Ball about what happened a second time and Spencer told him he was "sucker-punched." This was not in his four sentence statement or the officer's follow-up questions or the previous answers given by Mr. Hope on this trial. When Mr. Hope was challenged on this evidence he once again resorted to saying maybe he heard this from somebody else. The difficulty with this evidence was Mr. Hope was prepared to adopt somebody else's observation as his own observation. In my view this was another example of how unreliable Mr. Hope's evidence could be. Consequently, it would be dangerous to accept Mr. Hope's evidence unless it was corroborated by other evidence.
186Mr. Hope was evasive in the answers he gave as to whether when Mr. Ball got up off the floor he went towards where Mr. Jim was sitting intending to retaliate and he had to be held back by others who were around him. Mr. Doucette was also evasive in respect of his answers on this issue, as he initially testified others held Mr. Ball back from retaliating but then testified he could not recall. What was telling about the reluctance of these two witnesses being prepared to concede Mr. Ball attempted to retaliate was the fact Mr. Ball admitted he had to be held back from retaliating.
187Both Mr. Hope and Mr. Doucette testified they spoke to the police on the night of the incident yet there were no police notes that reflected them providing information. Further, it was P.C. Chandler's position Mr. Ball did not know who attacked him and nobody came forward to provide any information as to who the other person involved in the physical altercation was. Both Mr. Hope and Mr. Doucette knew Mr. Jim was Ms. Danielle Vincent's husband and this information was never provided to the police at the Hellenic Centre.
188Mr. Doucette also described Mr. Ball's head bouncing off the dance floor with each punch by Mr. Jim, yet Mr. Ball had no injuries to the back of his head, no bruises and no swelling or bumps. Given the description provided by Mr. Doucette there would have had to be some injury to the back of Mr. Ball's head but there was none.
189Mr. Doucette was also evasive in his answers respecting the force he used when he tried to prevent Mr. Jim from leaving the hall and he put Mr. Jim against the wall. Originally in his evidence he testified he was trying to prevent Mr. Jim from leaving before the police arrived, yet he let him go. He provided no explanation for this change of heart.
Conclusion on Consent Fight
190For the reasons expressed above, I found Mr. Jim's evidence to be credible and reliable. As discussed his evidence was corroborated in a number of significant areas concerning the escalation of the interactions between him and Mr. Ball. Mr. Jim maintained in his evidence the fight was consensual, and as such the punches thrown in the course of the fight were lawful. Considering the totality of the evidence I find this was a consent fight. I do not accept Mr. Ball's evidence concerning how the altercation started. It does not accord with human experience and common sense. There were too many examples of Mr. Ball being evasive in his answers, with a clear personal agenda. I have found a number of instances where Mr. Ball was less than forthright and others where he was caught in outright lies in his evidence. Mr. Ball had an agenda, which I find was connected to his anticipated civil action suing Mr. Jim, the Sudbury District Law Association and the Hellenic Centre. This was amply demonstrated in his embellishment of the injuries he sustained as a result of this fight in his evidence. The only injury that qualified as serious bodily harm was the cut on his left cheek that required stitches. In my view Mr. Ball was a wholly unreliable and incredible witness.
191A further piece of evidence supporting the physical altercation between Mr. Jim and Mr. Ball was a consent fight was the fact Mr. Ball attempted to retaliate when he got up from the dance floor. In addition, there was evidence from Mr. Hope that Mr. Ball called out to Mr. Jim after he got up from the dance floor that "if it was a 'fair fight' he would have been happy." None of the witnesses called by the Crown told the police in their statements Mr. Ball, after the physical altercation, said he was "sucker-punched." Two of the witnesses, Ms. Dowdall and Mr. Hope, testified in court that Mr. Ball had said he was "sucker-punched" at the Hellenic Hall but when they were each cross-examined on this testimony they both conceded this was not in their police statements and was something they likely heard from Mr. Ball after he was released from the hospital during their conversations with him. In my view this change in their evidence was significant as it demonstrated how Mr. Ball's conversations after the incident contaminated or tainted some of the witness' evidence. As indicated, I find Mr. Ball was not "sucker-punched" by Mr. Jim, as there was a pushing back and forth by both men, followed by a punch by Mr. Jim, followed by a scuffle or struggle that took the two men across the dance floor towards the stage, where they fell into a mic stand, damaging it.
Intention to Cause Serious Bodily Harm
192I also accept Mr. Jim's evidence he did not intend to cause serious bodily harm to Mr. Ball when he punched him. He was not experienced as someone who had been involved in previous fist fights. I accept his evidence that this was the first occasion he had ever become involved in a fist fight. Further, on the whole of the evidence, no witness was able to say how Mr. Ball's cut on his left cheek under his left eye was caused. The first punch according to Mr. Ball was to his temple and everything went black. Mr. Ball conceded this punch did not cause the injury. There was evidence that Mr. Jim and Mr. Ball moved across the stage in a scuffle or rugby tackle or wrestling motion until they fell into a mic stand, which according to Mr. Doucette and Mr. Jim, a band member said the mic stand was damaged by the two men falling into it onto the floor. Mr. Doucette testified he saw the mic stand was bent. It is my view this supports Mr. Jim's evidence he did not intend to cause serious bodily harm to Mr. Ball. If the injury was caused by the two men falling into the mic stand and damaging it, this would not be something Mr. Jim could have intended to occur.
193The Crown in his submissions argued there was a logical inference that Mr. Jim intended to cause Mr. Ball some damage because he was punching him. The difficulty with this submission, as I pointed out during the Crown's submissions, was that the Crown's onus was to prove beyond a reasonable doubt that Mr. Jim intended to cause serious bodily harm to Mr. Ball when he punched him not "some damage." I find on the whole of the evidence called during this trial the Crown has not proved beyond a reasonable doubt that Mr. Jim intended to cause Mr. Ball serious bodily harm. Mr. Jim admitted in cross-examination he wanted to apologize to Mr. Ball because his actions were inappropriate and as he found out he had caused some damage. It is my view this admission did not prove beyond a reasonable doubt that Mr. Jim intended to cause serious bodily injury to Mr. Ball, far from it. Mr. Jim's evidence, which I have accepted, was he did not intend to cause Mr. Ball serious bodily injury. He testified he was not aware until after the physical altercation was over that Mr. Ball had been hurt, which I also accept.
State of Consciousness
194I do not accept Mr. Ball's evidence he was unconscious or semi-conscious when Mr. Jim was punching him when he was over Mr. Ball, after they both fell to the dance floor. Mr. Ball's evidence is completely unreliable as he maintained at one point everything went black and he was unconscious after the first punch but he then testified he could still feel punches but they were not hard so he was surmised he was probably semi-conscious after the first punch and then he went unconscious later. His evidence changed frequently on this issue. He described this semi-conscious state as someone who has had their bell rung, which interestingly was the same phrase used by Mr. Doucette in describing someone who is semi-conscious – someone who has had their bell rung. In my view the use of the same phrase is too coincidental in a case where the complainant was the individual who provided the names of witnesses to the police and who had spoken to each of those witnesses before they provided their witness statements to the police.
Final Determination
195Even if I was to reject Mr. Jim's evidence completely, which I do not, and even if I rejected Mr. Jim's evidence and it failed to raise a reasonable doubt concerning his guilt after considering it in the context of the evidence as a whole, which is not the case, I could not convict Mr. Jim because, in my view, there was not sufficient evidence remaining of Mr. Ball's evidence or the other Crown witnesses that I do accept that was capable of convincing me of Mr. Jim's guilt beyond a reasonable doubt. In my view, as I have indicated, Mr. Ball was not a credible or reliable witness and I do not accept his evidence. Further, the evidence of the other Crown witnesses was also problematic and unreliable and was not capable of convincing me of Mr. Jim's guilt beyond a reasonable doubt, particularly because they did not observe how the physical altercation began.
196Considering the whole of the evidence, I accept Mr. Jim's evidence the physical altercation was a consent fight and that he did not intend to cause Mr. Ball serious bodily harm. As a result, the charge is dismissed and Mr. Jim is acquitted.
Released: August 27, 2018
Signed: Justice Peter C. West