COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Brouillard, 2016 ONCA 342

DATE: 20160506

DOCKET: C59883 & C60164

Blair, Tulloch and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jesse Brouillard

Steven Taing

Appellants

James Foord, for the appellant, Jesse Brouillard

Michael Davies, for the appellant, Steven Taing

Scott Latimer, for the respondent

Heard: March 29, 2016

On appeal from the conviction entered on July 3, 2014 and the sentence imposed on October 16, 2014 by Justice Célynne S. Dorval of the Ontario Court of Justice, sitting without a jury.

Pardu J.A.:

[1] The appellants, Jesse Brouillard and Steven Taing, were both convicted of aggravated assault of a customer, Ikechukwu Ukwu who had been ejected from the bar where they were managers. Each appeals from their conviction for different reasons, and also seeks leave to appeal sentence.

[2] Mr. Brouillard argues that the verdict identifying him as an assailant was unreasonable, because the video evidence was of such poor quality that it was insufficient to identify him as the second assailant, and that the trial judge misapprehended that evidence, in any event.

[3] Mr. Taing argues that while he indisputably threw the first punch that knocked Mr. Ukwu to the ground, Mr. Ukwu got back up after that punch, and appeared unresponsive only after the second punch was thrown by another person. It was at that point that Mr. Ukwu fell and hit his head on the curb or ground, and became unresponsive. Given the sequential nature of the blows, Mr. Taing submits that it was unreasonable to attribute responsibility to him for Mr. Ukwu’s serious head injury, and unreasonable to conclude that he and the other assailant were acting in concert. He submits that the trial judge erred by not engaging in any causation analysis connecting the blow he struck with Mr. Ukwu’s injuries.

[4] For the reasons that follow, I would dismiss the appeals.

(1) The findings of the trial judge

[5] The trouble began inside the bar where Mr. Brouillard and Mr. Taing were both managers. There was some kind of altercation, following which three males, Mr. Ukwu among them, and two females were ejected from the bar. A video of the inside of the bar showed Mr. Brouillard actively involved in this “melee.” At the end of this scuffle, Shawn Mahmoud, the manager of another bar, had Mr. Ukwu in a full nelson hold and was removing him from the bar. Mr. Brouillard and Mr. Taing followed them outside.

[6] It appears from the bar’s surveillance video of the street that Mr. Mahmoud spoke to Mr. Brouillard just before releasing Mr. Ukwu. Almost immediately, Mr. Taing punched Mr. Ukwu, who fell to the ground. As Mr. Ukwu got back up, Mr. Brouillard quickly circled around to the area where Mr. Ukwu had just risen to his feet. Just before Mr. Ukwu fell from the force of the second blow, Mr. Brouillard was admittedly identified as being close by, in a lunging position, with a cocked bare arm visible above the forward lunging leg. The contact of the second punch with Mr. Ukwu is not visible on the video, but Mr. Ukwu fell in a direction which would be consistent with a blow struck by Mr. Brouillard.

[7] The trial judge found that only three people were close to Mr. Ukwu at the time of the second blow: Mr. Brouillard, Stefan Ilic, and Rodrigo Brand. No challenge is made on appeal to this finding. The trial judge excluded Mr. Brand as the second assailant because Mr. Brand was wearing a jacket and tie, and therefore his arms were not visible, in contrast to the arms of the second assailant, which she found were visible in the video immediately before and after the blow. The trial judge also found from the video, as well as from a second City of Ottawa street camera recording, that Mr. Ilic moved towards Mr. Ukwu after the second blow, and that he came from behind Mr. Ukwu, opposite to the direction in which Mr. Ukwu was sent flying by the punch. She therefore excluded him as the second assailant as well. She concluded that the person who delivered the second punch was Mr. Brouillard.

[8] Finally, on the basis of the sequence of events in which Mr. Taing and Mr. Brouillard assaulted Mr. Ukwu, the trial judge concluded that they acted in concert to exact retribution on Mr. Ukwu for the trouble he had caused in the bar.

(2) Was Brouillard’s conviction reasonable?

[9] Mr. Brouillard submits that the video evidence was of insufficient quality to enable the trial judge to exclude Mr. Ilic as the second assailant, and to conclude that it was Mr. Brouillard.

[10] However, as pointed out by Rosenberg J.A. in R. v. Abdi, 2011 ONCA 446, at para. 6:

Whether the video recordings were of sufficient quality was a question of fact for the trier of fact, here the trial judge. This court’s jurisdiction to review that finding is limited. The leading case on the issue is the decision of the Supreme Court of Canada in R. v. Nikolovski, 1996 CanLII 158 (SCC), [1996] 3 S.C.R. 1197, where Cory J., speaking for the majority of the court, said the following at para. 23:

If an appellate court, upon a review of the tape, is satisfied that it is of sufficient clarity and quality that it would be reasonable for the trier of fact to identify the accused as the person in the tape beyond any reasonable doubt then that decision should not be disturbed. Similarly, a judge sitting alone can identify the accused as the person depicted in the videotape.

[11] Here, there is no dispute that the appellants were accurately identified in the videos and that their paths of travel could be traced. The issue here is whether a finding that Mr. Brouillard threw the second punch can safely be made from the videos.

[12] I have reviewed the video evidence and conclude that the trial judge’s findings were reasonable in light of all the evidence before her. She had the benefit of software that slowed down the sequence of events, and enabled her to view them very slowly. She had recognition evidence from police officers who knew the appellants. Their paths of travel were highlighted with coloured circles, and their whereabouts in the crowd outside the bar were not in dispute. She also had the benefit of two different videos of the street, one recovered from the bar’s surveillance camera and another City of Ottawa recording. Mr. Brouillard was admittedly in a lunge position close to Mr. Ukwu immediately before the second blow, and the direction Mr. Ukwu’s body flew was consistent with a blow struck by Mr. Brouillard, while it was inconsistent with one struck from Mr. Ilic’s position. Moreover, Mr. Ilic moved towards Mr. Ukwu after the second blow.

[13] For these reasons, I am not persuaded that there was a misapprehension of the evidence, nor do I see any basis on which to interfere with the trial judge’s finding that Mr. Brouillard threw the second punch.

(3) Did the trial judge err by finding that the appellants were acting in concert and by failing to deal with causation?

[14] Given the animus evidenced by the physical confrontation inside the bar, the ejection of Mr. Ukwu, and the fact that Mr. Brouillard and Mr. Taing followed Mr. Mahmoud and Mr. Ukwu outside for no evident purpose and then each punched Mr. Ukwu within seconds of each other, it was open to the trial judge to conclude that the appellants were acting in concert. She was therefore not required to analyse which blow caused the injury. The trial judge correctly relied on R. v. McMaster, 1996 CanLII 234 (SCC), [1996] 1 S.C.R. 740, in which the Supreme Court of Canada stated, at para. 33:

It is a well-established principle that where a trier of fact is satisfied that multiple accused acted in concert, there is no requirement that the trier of fact decide which accused actually struck the fatal blow.

[15] Taing told police in his interview of management’s intention to discourage undesirable customers. This supports the trial judge’s finding that both bar managers were acting in concert. The fact that blows are struck sequentially, rather than concurrently, does not exclude a finding that two parties acted in concert.

[16] For example, in R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, Biniaris and another teenager attacked a victim causing fatal head injuries. According to the medical evidence at trial, Biniaris did not participate in the attack until after the fatal injuries had already been inflicted. In its closing submissions to the jury, the Crown advanced a three-part theory of liability for second degree murder: liability as a principal, liability as a co-perpetrator, or liability as an aider or abettor. The jury convicted Biniaris of second degree murder. The B.C. Court of Appeal substituted a conviction for manslaughter on the basis that the jury’s verdict was unreasonable, but the Supreme Court of Canada restored the jury’s conviction. The court noted, at paras. 45-49, that in light of Biniaris’s liability as a party, the fact that the blows inflicted by him were not the immediate cause of the man’s death was of no significance.

[17] Another example is R. v. P. (L.) (2003), 2003 CanLII 34564 (ON CA), 172 C.C.C. (3d) 195 (Ont. C.A.). In that case, L.P. punched the victim in the head area several times. The victim fell to the ground, and R.B. then kicked him hard in the head. L.P. and R.B. were both convicted of aggravated assault, and this court dismissed their appeals. The court noted, at paras. 17-18:

Counsel also submitted that the trial judge erred in finding that R.B. and L.P. acted jointly in committing the assault, making it unnecessary for the purposes of liability to determine whether the punch or the kick caused the injury. Counsel rely on the acquittal of K.H. [a third accused] and the gap in time between the punches and the kick in support of this submission.

It was open to the trial judge to find that the appellants acted together as joint perpetrators of the assault. They went after [the victim] together and confronted him together. In the course of the same series of events which occurred in a short time span both appellants assaulted [the victim]. We cannot agree that the brief interval between the punches and the kick rendered the conclusion that the appellants acted together unreasonable. To the contrary, we think the attempt to portray the two assaults as discrete and unconnected events is a strained and unrealistic interpretation of the events.

[18] In my view, the trial judge did not err in finding that the appellants were acting in concert, and she was not obligated to determine whether Mr. Taing’s punch was the direct cause of Mr. Ukwu’s injuries.

(4) Was the sentence unfit?

[19] The appellants submit that the three-year sentence given to Mr. Taing, and the three-and-a-half-year sentence given to Mr. Brouillard, were outside the range and excessive, given that this was a “one-punch” case for each of them. They also argue that the trial judge made inconsistent findings by first stating in her reasons for conviction that the assault occurred spontaneously as Mr. Ukwu was ejected from the bar, while later indicating in her reasons for sentence that although the assaults were not premeditated, they also were not spontaneous. Finally, the appellants argue that having found that there was insufficient evidence to conclude that the appellants themselves reformatted the bar’s video surveillance recording in an attempt to destroy evidence, the trial judge erred in using the appellants’ failure to ensure the recording was not tampered with by others as an aggravating factor on sentencing.

[20] I reject these arguments.

[21] Mr. Ukwu suffered devastating injuries as a result of the assault. In a letter submitted to the court, Mr. Ukwu’s treating physician observed:

Mr. Ukwu has marked impairments at a time point almost 2 years post injury. He will continue to have lifelong deficits as a result of his injuries secondary to the assault in June 2012. He will always need support to live in the community. He will never be competitively employable and he will not be able to reach the potential that his university education would have afforded him.

[22] At the time of the assault, Mr. Ukwu was not acting in an aggressive manner. He was defenceless at the moment of each punch. The fact that each appellant punched him only once does not lessen the severity of what they did. There is no basis to conclude that the sentences were manifestly unfit. (R. v. Lacasse, 2015 SCC 64, [2015] 3 SCR 1089)

[23] The trial judge also did not err in her treatment of “spontaneity”. She first stated in her reasons for judgment, at para. 29:

In this case, section 21(2) does not apply as there is no evidence that the two assailants formed a common intention to carry out an assault on Mr. Ukwu. The assault occurred spontaneously as Mr. Ukwu was ejected from the bar.

[24] Later, in her reasons for sentence, she stated, at para. 23:

The assaults were not premeditated for any lengthy period of time, but neither are they spontaneous. Mr. Taing had to approach Mr. Ukwu to strike him. Mr. Brouillard had to follow the movements of Mr. Mahmoud and had time to consider his own actions when he saw the victim fall to the ground after being struck by Mr. Taing. His blow is not spontaneous; he winds up and strikes Mr. Ukwu as soon as he is standing.

[25] The trial judge used “spontaneous” in two different contexts. In the first, she was referring to the fact that the appellants did not form a plan inside the bar to commit the assault. In the second, she was referring to the degree of coordination between the appellants when they acted jointly to commit the assault on Mr. Ukwu outside the bar.

[26] Finally, even if the trial judge erred in treating as an aggravating factor the failure of the appellants to prevent other misguided individuals from attempting to destroy evidence, the sentences imposed were nonetheless fit.

(5) Disposition

[27] Accordingly, I would dismiss the appeals from conviction, grant leave to appeal from the sentence, but dismiss the sentence appeals.

Released: (“RAB”) May 6, 2016

“G. Pardu J.A.”

“I agree R.A. Blair J.A.”

“I agree M. Tulloch J.A.”