DATE: 20010924

DOCKET: C32241

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) v. JUSTIN McK. (a young person)

BEFORE:

DOHERTY, GOUDGE and CRONK JJ.A.

COUNSEL:

John A. Olah and

Doug Murray

for the appellant

Amy Alyea

for the respondent

HEARD:

September 17 and 18, 2001

On appeal from the conviction imposed by Judge M.H. Caney on December 12, 1997 and the sentence imposed on February 20, 1998.

E N D O R S E M E N T

[1] The appellant, Justin McK., aged sixteen, was convicted of assault and assault causing bodily harm. The convictions arose out of two fights between the appellant and Todd M. that occurred on the same afternoon.

The Assault Conviction

[2] The first fight occurred in front of the restaurant owned by Justin’s mother. Todd kicked over a blue box in front of the restaurant containing discarded bottles. Justin saw this and approached Todd to ask him why he had kicked over the blue box. The trial judge accepted Justin’s description of the events that followed:

“I just want to know, what – why would you kick my blue box?” And then … and then … he said … he said ‘I don’t know, there was bees in it’ or something, and I said … I said ‘isn’t that kind of a stupid answer?’ And he just didn’t say … he didn’t say anything, and then I looked away and then I looked back, and I guess … I flinched, or whatever, when I looked back, and he thought I was going to punch him or something. I didn’t, like, lift my arm or anything, and he pushed me. So I pushed him back and he pushed me again, and then I pushed him, and he hit the back of his head off the sign.”

[3] The trial judge then said:

In pushing Todd’s head off the sign, he [the appellant] took what otherwise would have been foolish roughhousing between two teenagers to a higher and excessive level of violence and I find that the striking of Todd’s head against the sign caused by Justin’s pushing of him constituted an assault under s. 266 of the Criminal Code and there will be a finding of guilt in that regard.

[4] The trial judge appears to have accepted that the exchange of pushes between the two boys constituted a consensual fight in the nature of “an ordinary school yard scuffle”: R. v. Jobidon (1991), 1991 CanLII 77 (SCC), 66 C.C.C. (3d) 454 at 494-95 (S.C.C.). He concluded, however, that when Mark’s head struck the sign, Justin’s conduct went beyond that envisioned by a consensual school yard scuffle and became a criminal assault.

[5] We think the trial judge mischaracterized Justin’s evidence (which he accepted) when he said Justin “pushed Todd’s head off the sign”. There is no suggestion in the evidence that this consequence was intended, foreseen or even contemplated by Justin. Nor, is there any evidence that Justin should have foreseen or contemplated the possibility of Mark’s head hitting the sign. Justin met a push with a push, and on the evidence the trial judge accepted, did not move the conflict to “a higher level of violence”. In our opinion, the fact that Todd’s head struck the sign does not change the nature of the altercation. Each boy pushed the other. The force used by Justin was within the scope of the force contemplated by the participants, was not intended to cause harm, and did not cause any bodily harm. In our view, this was “an ordinary school yard scuffle” and not a criminal assault. This conviction is quashed and an acquittal entered.

The Assault Causing Bodily Harm Conviction

[6] The second fight occurred a few minutes after the first. Justin and his girlfriend were walking to school when they saw Todd and some of his friends standing on the sidewalk between them and the school. Anticipating that there might be trouble, Justin told his girlfriend to go ahead to school. Although there was conflicting evidence as to what occurred next, the trial judge accepted the version given by Justin in his examination-in-chief and cross-examination. According to him, he walked up to the group and sought out Todd. He wanted to settle matters between them and demanded a better explanation for the kicking of the blue box. Todd indicated that he was not prepared to fight, but invited Justin to come to “Keswick”, implying that he would fight him in Keswick. Todd had earlier made reference to slitting Justin’s throat if he came to Keswick. The appellant then said “There’s no point, if we’re going to fight, we might as well fight right here.”

[7] Justin again demanded an explanation for the kicking of the blue box and again did not receive a satisfactory explanation.

[8] Justin testified that Todd came towards him and pushed into him. He was unsure whether Todd had been pushed or whether he had moved towards Justin on his own. Justin pushed Todd back and Todd then swung at Justin barely missing him. Justin then struck Todd with his closed fist about three times, knocking Todd down. As Todd was falling, he grabbed Justin and pulled Justin down with him. The fight ended at this point and the appellant continued on to school.

[9] Todd suffered significant bruising as a result of the blows struck by Justin. One of his eyes was swollen shut and the other was partially closed. It took about two weeks for the bruises to clear up. The trial judge found that the injuries to Todd amounted to bodily harm.

[10] The trial judge found that the appellant could have avoided the second altercation, but instead chose to confront Todd determined to settle matters there and then. He concluded that Justin was the aggressor from the outset.

[11] Based on these findings, the trial judge said:

I am satisfied on Justin’s own evidence that he knew that Todd was not consenting to a fight.

Moreover, he knew he could walk away from the situation and chose not to do so.

There is nothing otherwise in the evidence before me to suggest there was either a consent to a fight or that Justin had an honest but mistaken belief there was a consent by Todd to fight with him.

[12] These findings of fact were reasonably open to the trial judge and are not tainted by any misapprehension of the evidence. Nor, in our view, are they vitiated by the trial judge’s finding that after the appellant confronted Todd and declared that they would fight there and then, that it was Todd who initiated the first contact with Justin and threw the first punch.

[13] As the trial judge’s findings that Todd did not consent to the fight, and the appellant knew he did not consent to a fight, must stand, the decision in R. v. M.(S.) (1995), 1995 CanLII 1895 (ON CA), 97 C.C.C. (3d) 281 (Ont. C.A.) has no application.

[14] Counsel also argues that the trial judge failed to consider the defence of self-defence as defined in s. 34(1) of the Criminal Code. That defence was unavailable on the facts as found by the trial judge. Justin initiated the altercation and any subsequent assault by Todd cannot be said to be unprovoked by Justin.

[15] Counsel also argues that the trial judge failed to consider the evidence of Justin’s good character, and the evidence of Todd’s propensity for violence, including evidence that he started a fight with Justin some two years earlier. Given that the trial judge accepted Justin’s version of all of the relevant events, this evidence had little or no significance and we find no error in the trial judge’s failure to advert to that evidence.

[16] Lastly, counsel submits that the trial judge erred in allowing Crown counsel to cross-examine Justin’s mother concerning the criminal record of her husband. We agree with the appellant that this cross-examination was improper and had no probative value.

[17] The trial judge made no reference to this evidence and given his findings of fact, we are completely satisfied that this evidence played no role in his ultimate determination.

[18] The appeal against the conviction on the charge of assault causing bodily harm is dismissed.

The Sentence Appeal

[19] The trial judge imposed a suspended sentence with probation for one year. The terms of his probation included a significant community service order. Justin has successfully completed his probation.

[20] In rejecting counsel’s submission that an absolute discharge would be appropriate, the trial judge emphasized the fact that the fight had occurred near a school. He felt that it was important that the school community appreciate that such violent conduct was unacceptable.

[21] We agree that an absolute discharge was not appropriate. We also agree that the sentence had to send the appropriate message to the school community. We think, however, that a conditional discharge followed by probation on the same terms that were imposed by the trial judge would just have effectively sent that message to the school community. All other considerations favour a discharge. Justin has no criminal record and is by all accounts a peaceable and well regarded member of the community. His prospects are bright and a criminal record could adversely affect those prospects. It is also significant that Justin did not attempt in his evidence in any way to diminish his role in the altercations. He was a truthful and forthright witness. It must also be acknowledged that Todd has some responsibility for what happened.

[22] Were we imposing sentence as of the date of trial, we would have imposed a conditional discharge followed by probation for one year on the terms set by the trial judge. Given the passage of time and the successful completion of the probation term, we are satisfied that an appropriate sentence would be a conditional discharge with probation on the statutory terms for a period of one month to commence with the release of these reasons. Accordingly, the sentence appeal is allowed, the conviction on the assault causing bodily harm charge is quashed and a conditional discharge followed by a one-month period of probation on the statutory terms is imposed.

The Request for Costs

[23] At the conclusion of the appeal, counsel indicated that in the light of our upholding of the finding of guilt on the assault causing bodily harm charge, he would not pursue his requests for costs pursuant to s. 24(1) of the Charter. We think counsel was correct in taking that position and the request for costs is dismissed. In dismissing the motion, we should not be taken as having addressed any aspects of the merits of the motion.

Summary

[24] The appeal from the assault conviction is allowed, the conviction is quashed and an acquittal entered.

[25] The sentence appeal on the assault causing bodily harm conviction is allowed, the conviction is set aside, a conditional discharge is granted and the appellant is placed on probation on the mandatory statutory terms for a period of one month.

“Doherty J.A.”

“S.T. Goudge J.A.”

“Cronk EA, J.A.”```