Court File and Parties
Ontario Court of Justice
Date: 2016-10-04
Court File No.: Halton 1174/14
Between:
Her Majesty the Queen
— and —
Yasin Hathouti
Before: Justice Lesley M. Baldwin
Heard on: May 9, 10 and 11, 2016
Reasons for Judgment released on: October 4, 2016
Counsel
Ms. A. Stevenson — counsel for the Crown
Mr. G. Parker and Ms. S. Butany — counsel for the defendant Yasin Hathouti
BALDWIN J.:
Charge and Admissions
[1] Yasin Hathouti is charged with committing an assault causing bodily harm on Quentin Simms on the 25th day of October, 2013, at the Town of Oakville contrary to s. 267(b) of the C.C.C.
[2] The Crown proceeded summarily.
[3] At the outset of trial, date, jurisdiction, identity, the fact that the complainant sustained bodily harm and the voluntariness of the accused's statement to police were admitted.
Injuries Sustained
[4] Quentin Simms sustained the following injuries:
- 3 chipped teeth;
- bruises and lacerations on his face and neck;
- swollen lip;
- concussion (per CAT scan) resulting in headache and blurry vision for a few days.
[5] The bruises and lacerations lasted for one to two weeks. The chipped teeth required dental repair.
[6] The Hospital Records and the receipt for the dental work (in the amount of $430.00) were filed as Exhibit #2.
[7] Photographs of the injuries sustained were filed as Exhibit #3.
The Incident
[8] The incident occurred at a house party for some students of White Oaks Secondary School in Oakville. Quentin was an invited guest. Yasin was not. The allegation is that Quentin became intoxicated at the party and was leaving. While he was at the front door he was punched in the face twice by Yasin. Quentin fell onto a hallway table and then fell face down onto the tile floor. He was briefly unconscious and was bleeding profusely. Yasin was immediately pushed out of the house by the homeowner.
Summary of the Testimony of Angela Moutoulas
[9] She is a lawyer by profession. Her daughter Lara was having a 17th birthday party at their residence on Friday night October 25, 2013. Her daughter was in Grade 12 at White Oaks Secondary School at the time.
[10] Ms. Moutoulas and her husband were home and they had set house rules. They had permitted Lara to invite 50 to 60 people that she knew to attend the party.
[11] Ms. Moutoulas knew that Quentin Simms was one of Lara's friends. She had never heard the name Yasin Hathouti before this night.
[12] The party started at 8 p.m. and was expected to end around 1 a.m. Ms. Moutoulas was aware that some of the teenagers would be consuming alcohol.
[13] Sometime between 11 p.m. and 12 a.m., Ms. Moutoulas was coming down the stairs to the main level of the house. The distance from the end of the stairs to the front door is six feet. She saw a lot of teenagers at the bottom of the stairs near the front door and more coming up from the basement.
[14] She saw a group of primarily boys surrounding Quentin who was about four feet from the front door. Quentin was fairly inebriated. He appeared to have trouble standing. He was shouting something with slurred speech and his eyes were half-closed. She could hear some people telling Quentin to shut up.
[15] Ms. Moutoulas then saw the accused come out of the group that had come up from the basement. She saw the accused punch Quentin in the face. Quentin fell backward into the front door. Quentin pivoted around and the accused punched him again in the face. Quentin fell into the hall table and then fell face first onto the tile floor.
[16] Ms. Moutoulas described the fist-punches as being forceful. Quentin did not advance on the accused at all. He did not defend himself at all.
[17] As soon as Quentin fell on the tile floor there was lots of blood pooling under him.
[18] The accused was standing with his back to her. Ms. Moutoulas grabbed his shoulders and pushed him out of the house.
[19] Ms. Moutoulas testified that she had a clear unobstructed view of the incident. She was standing only two to three feet away at the time.
Summary of the Testimony of Lara Isaias
[20] She invited only her friends to this birthday party. She was in Quentin's English class at White Oaks Secondary School.
[21] She knew everyone that attended the party until she saw the accused. She knew his younger brother from school but she did not know Yasin.
[22] The party started at about 9 p.m. She consumed four coolers between then and 11:30 p.m. She felt a bit tipsy but she was functional.
[23] The party was mainly located in the basement.
[24] She heard Quentin arguing with a classmate of hers named Oliver in the front foyer. Quentin's back was to the door. Oliver was facing the door and yelling at Quentin to leave. Quentin was intoxicated and he was yelling 'no'.
[25] People started coming up from the basement. They formed around the two of them in the foyer.
[26] Then Yasin came out of the crowd and he hit Quentin forcefully with a fist. Quentin's face struck the front door and then Yasin struck him again as Quentin's body was still in motion. Quentin hit the foyer table and then fell onto his stomach on the tile floor.
[27] Lara testified she had a clear view and was standing just a couple of feet away.
[28] Quentin was unconscious on the floor for a few seconds with blood coming out of his nose and mouth.
[29] Her mother threw the accused out of the house.
Summary of the Testimony of Quentin Simms
[30] Quentin is now 20 years of age and has graduated from high school.
[31] At the time of this incident, he was also working as a piano student with the Merriam School of Music.
[32] He had just finished working at the school and got to the party after 8 p.m. He walked to the party alone. He had no alcohol before the party. He brought 4 beers and an inch or so of Jack Daniels with him in his backpack.
[33] He did not plan to drink much at the party because the next day he had to get up at 7 a.m. and drive to London for a paying piano player job. He had to drive and could not be hungover.
[34] An incident occurred during the party in the basement where he was forced to drink hard liquor by people he did not know who were also threatening to beat him up if he did not.
[35] The next thing he remembers is being outside on the porch sitting on lawn chairs with his friends.
[36] His last memory is being at the front door saying goodbye. He was not sober. He has no memory of leaving the party. He has never been involved in a fight in his life. He has no memory of being in a confrontation at the front door. He is not a confrontational type of person.
Summary of the Testimony of Yasin Hathouti
[37] Yasin was 21 years of age when he testified. He has no criminal record and lives with his Aunt in Milton. He is not employed and he attends Gary Allen School to upgrade his English.
[38] Lara did not invite him to her party. His younger brother invited him. He went to the party with two of his friends. They arrived around 10:30 p.m. They did not bring any alcohol with them but friends at the party gave him alcohol to drink in the basement.
[39] He heard an altercation taking place upstairs so he came up from the basement. He saw Simms and his friend Oliver standing about one foot apart from each other and shouting.
[40] He thought that Simms was going to attack Oliver so he reacted quickly and grabbed Simms. Simms was slurring his words and unsteady on his feet.
[41] As he held Simms, he was looking back at the person (MacKenzie/aka Mackey) who had grabbed Oliver. That is when he got a quick jab to his face. "So I punched him (Simms) square in the face" and he fell down.
[42] Lara's mother grabbed him immediately and threw him out of the house.
[43] He only hit Quentin Simms once.
[44] In cross-examination, Yasin stated that the only reason he laid hands on Quentin was because there was about to be a physical fight and that Quentin was going to attack Oliver because Quentin was in an intoxicated state.
[45] He agreed that Quentin posed no threat to himself personally.
[46] He agreed that he and Mackey took it upon themselves to break up Quentin and Oliver.
[47] Yasin testified that when he was holding Quentin by his backpack straps at the front door, he looked back at Mackey and then he was sucker punched in the face. His right cheek was later swollen a bit because of the hit.
[48] He did not sucker punch Quentin. He looked right at him when he punched him. He was defending himself. "Quentin punched me first so I hit him back."
[49] Yasin agreed that none of the homeowners were asking Quentin to leave their house. He had never been to the home before and did not realize that Lara's parents were there.
[50] Yasin agreed that Quentin was younger, smaller and drunker than he was at the time.
[51] Yasin thought that Quentin should have known him because he was the oldest one at the party. He did not think that Quentin was going to attack him.
[52] Yasin agreed that he made Quentin fall to the ground when he punched him. He did not agree that he used excessive force.
[53] Yasin denied being involved in any altercations in the basement. He did not see Oliver force Quentin to drink alcohol.
Summary of the Testimony of MacKenzie Jacob-O'Donnell
[54] He is 18 years of age and lives in Milton with his mother and step-father. He used to attend White Oaks High School. He now works in the heating business.
[55] Lara did not invite him to her party. He was invited by Yasin's younger brother.
[56] He went to the party with Yasin and Alan Russell. They did not bring any alcohol with them. They arrived at the party around 10:30 or 11:00 p.m.
[57] He drank beer in the basement with Yasin and Oliver Green.
[58] There was an incident in the basement where Quentin accidentally spilled some beer. Oliver got upset about it. MacKenzie decided to take Yasin outside so he would not get physically involved in it. A short time later they returned to the basement.
[59] About 20 minutes later he heard shouting coming from upstairs. He and Yasin and Russell went upstairs to see what was happening.
[60] He saw Oliver and Quentin at the front door less than a foot apart from each other. Quentin was "obliterated". He was very drunk. Other people in the crowd were yelling at both of them.
[61] He decided to pull Oliver away at the same time as Yasin pulled Quentin away to prevent a fight.
[62] Quentin punched Yasin in the face. Quentin had his back to the door at the time and Yasin was looking away. It was not a hard punch because Quentin was too intoxicated.
[63] MacKenzie testified that he looked over to see if Quentin was going to come after him when he saw Yasin punch Quentin in the face. He knew Yasin would punch him back and then Yasin "dropped him". He does not know what Quentin hit when he fell down.
[64] He did not know where Lara's mother came from. She grabbed Yasin by the shoulders and told him to get out. MacKenzie left with Yasin and Allan Russell.
[65] In cross-examination, it was revealed that MacKenzie now lives with Yasin and they are very good friends – like brothers.
[66] He has spoken about the incident many times with Yasin, including being told what Yasin said to the police after he was arrested and interviewed.
[67] They talked about how they had both moved in to prevent a fight and how Quentin hit Yasin.
[68] MacKenzie testified that he thought the party was held in the summer. He does not remember how he got to the party.
[69] He did not know anything at all about Quentin.
[70] He knows that Yasin is the kind of guy to stand with his friends.
[71] MacKenzie agreed with the suggestion that if Oliver and Quentin had gotten physical with each other that Oliver would have dominated because Quentin could hardly stand up at the time.
[72] MacKenzie stated that Quentin's hit to Yasin's face was not hard at all. There was no wind-up. Quentin did not hurt Yasin and there was no injury to his face. It was a drunken punch. Yasin made no complaint of any injury to him.
[73] MacKenzie repeatedly referred to Quentin as the "kid". He stated that the kid was too drunk and the enjoyment of his night was being disturbed by the kid spilling some beer.
[74] MacKenzie agreed that neither Lara or her parents had asked him to get Quentin out of the house. He and Yasin have acted together to break up altercations before.
Summary of the Testimony of Allen Russell
[75] He was 19 years of age when he testified at trial, and 16 years of age when he attended this party.
[76] He was not invited to it, but he had heard about it at school. He does not know Lara and did not see her at the party.
[77] Currently he works in a pub and he does some contracting. He has no criminal record.
[78] He arrived at the party about 10:30 p.m. He attended with Yasin's younger brother and MacKenzie O'Donnell.
[79] There were about 50 to 60 people at the party. He was in the basement and recalls no incident taking place down there.
[80] He came upstairs when he heard a lot of screaming.
[81] He saw Oliver and Quentin tussling face to face at the door. Both Quentin and Oliver were drunk. MacKenzie and Yasin moved in to break up the altercation. MacKenzie grabbed Oliver and told him to stop. Yasin grabbed Quentin and told him to get out. Yasin tried to push Quentin out of the door.
[82] Quentin punched Yasin in the face with a hook. It was a significantly hard punch.
[83] Yasin reacted by "defending himself" and punched Quentin once with a short-fisted jab straight to his face. Quentin fell.
[84] Lara's mother emerged from the crowd and grabbed Yasin from behind on his shoulders. At that point he and the guys he came with decided to leave.
[85] In cross-examination, he said that he did not bring anything to drink to the party. They were drinking for free that night.
[86] When he said that Quentin and Yasin were tussling at the front door, he meant that it was mostly verbal. They were not being physical with each other, although it appeared that they could become so.
[87] Oliver was yelling at Quentin to leave and Quentin was resisting.
[88] Yasin put Quentin in a bear hug. Yasin did not pull Quentin's backpack straps. Quentin hit Yasin's right jaw. Yasin snapped back and gave Quentin a shot in the face. They both gave each other relatively the same kind of punch.
[89] After Quentin "dropped" he personally did not check to see if he was okay because Quentin had put himself in that situation. Quentin got "what he deserved". "He crossed borders, everyone was done with his shit." Quentin had spilled some drinks earlier in the evening. Even he had a free drink spilled on him.
Position of the Parties
[90] The Defence position is that based on a WD analysis, the case has not been proven beyond a reasonable doubt.
[91] The Defence submits that the Court must be left in reasonable doubt when determining if the accused was acting in self-defence and if he used excessive force.
[92] The Defence submits that Lara's mother's view of the events must have been partially obstructed by the crowd at the bottom of the stairs and in the foyer.
[93] The Crown submits that the only issue for the Court to determine is has the Crown disproven self-defence beyond a reasonable doubt.
[94] The Crown submits that saying you were acting in self-defence is not the same thing as acting in self-defence.
[95] The Crown submits that after the Court applies the factors set out in s. 34(1) and (2) of the C.C.C., based on the reliable and credible evidence heard at this trial, the Court should conclude that when Yasin punched Quentin in the face he was not acting in self-defence.
[96] The Crown submits that the Court should accept the evidence of Lara and her mother that Yasin came out of the crowd and punched Quentin twice knocking him out cold.
[97] The Court should accept their evidence that there was no punch by Quentin to Yasin first.
[98] The Crown made extensive submissions on how the accused's versions of events were internally inconsistent and were inconsistent with the statement he gave to the police.
[99] The Crown made extensive submissions on how the testimony of the 3 defence witnesses were inconsistent from each other and why the Court should find that Yasin's two friends were biased in their testimony and that they had all had colluded in fabricating the events that happened at this party.
Analysis
The Law
[100] Section 34(1) and (2) of the C.C.C. reads as follows:
34 (1) A person is not guilty of an offence if
(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;
(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and
(c) the act committed is reasonable in the circumstances.
(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:
(a) the nature of the force or threat;
(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;
(c) the person's role in the incident;
(d) whether any party to the incident used or threatened to use a weapon;
(e) the size, age, gender and physical capabilities of the parties to the incident;
(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;
(f.1) any history of interaction or communication between the parties to the incident;
(g) the nature and proportionality of the person's response to the use or threat of force; and
(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.
[101] In assessing the reliability and credibility of all the evidence heard, I have applied the three-pronged test set out in the case of R. v. W.(D.), [1991] 1 S.C.R. 742, 63 C.C.C. (3d) 397 - which places the burden of proof on the Crown when resolving any issues of credibility that relate to the essential elements of the offence.
Findings of Fact
[102] I agree with all of the submissions made by the Crown.
[103] This is a case where three uninvited guests arrived at a private birthday party and created chaos and damage.
[104] The Crown's witnesses were credible and reliable.
[105] Ms. Moutoulas, who had consumed no alcohol that evening in her supervising role, had a clear and unobstructed view of the incident. She was standing only two to three feet away when she saw Yasin emerge from the crowd and punch the intoxicated Quentin hard twice in the face. She did not see Quentin hit Yasin as the three defence witnesses maintain. She was in a clear position to see this if it did happen. I find that it did not.
[106] Lara Isaias testimony was the same as her mother's. She was also only two feet away with a clear view.
[107] The defence witnesses had clearly colluded in giving their evidence. However, they did a bad job of it because the three of them gave inconsistent evidence on crucial points, examples of which include the following:
(1) Yasin said as he held Quentin he got a sucker punch to his face that resulted in a swollen cheek; MacKenzie said that the hit to Yasin's face was not hard at all because Quentin could hardly stand up at the time and Yasin made no complaint of any injury to him; Allen said that Quentin punched Yasin with a significantly hard punch – the same kind of punch that Yasin used back.
[108] I conclude that this is all fiction. Quentin did not punch or hit Yasin in any way at any time.
(2) Yasin said that he was holding Quentin by his backpack straps; MacKenzie said nothing about a backpack; Allen said Yasin did not pull Quentin by his backstraps.
[109] Same conclusion as above.
(3) Yasin denied being involved in any incident in the basement before the assault; MacKenzie said there was an incident in the basement between Quentin and Oliver involving some spilled beer and that he had to take Yasin outside so he would not get physically involved in it; Allen said there was no prior incident in the basement.
[110] Same conclusion as above.
[111] Since I have concluded as a fact that Quentin did not apply any force or pose any threat to Yasin, the s. 34 defence of self-defence does not apply. Even if it had, after considering all the factors (except subsection (d) which does not apply) I would have concluded that this was clearly a case of excessive use of force and the defence would have been proven not to apply by the Crown beyond a reasonable doubt.
[112] I find as a fact that Yasin punched Quentin twice in the face in a totally unprovoked manner. He behaved like a thug at this birthday party he was not invited to and should not have felt entitled to attend.
[113] For these reasons a finding of guilt for Assault Causing Bodily Harm is registered.
Released: October 4, 2016
Signed: "Justice Lesley M. Baldwin"