WARNING
The court hearing this matter directs that the following notice be attached to the file:
This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:
110. Identity of offender not to be published. —(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.
111. Identity of victim or witness not to be published. — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.
129. No subsequent disclosure. — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.
Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:
138. Offences. — (1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or
(b) is guilty of an offence punishable on summary conviction.
Court Information
Ontario Court of Justice
Sitting under the provisions of the Youth Criminal Justice Act, S.C. 2002, c. 1, as amended
Date: December 14, 2017
Between:
Her Majesty the Queen
— and —
J.G.B. and S.P., young persons
Before: Justice E. B. Murray
Heard on: October 5 and November 23, 2017
Reasons for Judgment released on: December 14, 2017
Counsel:
- Mr. E. Stimec — counsel for the Crown
- Mr. T. Ounapuu — counsel for the defendant S.P.
- Mr. R. Chu — counsel for the defendant J.G.B.
Decision
MURRAY, E. B. J.:
Introduction
[1] J.G.B. and S.P. are charged with offences alleged to have taken place in the parking lot of the Galleria Mall in Toronto on the afternoon of January 25, 2017. Both men are 16 years old. J.G.B. is charged with robbing O.H. of his cell phone and of assaulting O.H., causing him bodily harm. S.P. is charged with robbing O.H. of his cell phone while armed with an expandable baton.
[2] At trial I heard evidence from O.H., from Alex Moorhouse, an independent witness to a part of the interaction between O.H. and the defendants, and from J.G.B. I also viewed a surveillance tape of the interaction. S.P. did not give evidence.
[3] Identification is not in issue in this case.
[4] With respect to the charge of assault causing bodily harm, it is not contested that J.G.B. punched O.H. at least 10 times, and that O.H. suffered a bloody nose and a concussion. The issue is whether the Crown has proved beyond a reasonable doubt that J.G.B. was not acting in self-defence.
Evidence
O.H.
[5] O.H. is 15 years old. On January 25, 2017 at about 4:30 p.m. he was going to the Galleria mall to pay his phone bill. His evidence is as follows:
As he walked eastbound in the southwest parking lot he was accosted by S.P., who called out his name. S.P. was accompanied by three other youths. J.G.B. was one; the other two were unknown to O.H.
O.H. knew S.P. from seeing him around the mall. He was familiar with J.G.B. for the same reason, but did not know his last name.
The group converged upon O.H. as he reached the southern wall of the LCBO building in the mall. S.P. "dabbed" his hand.
S.P. then grabbed O.H.'s phone from his pocket. There was an exchange as O.H. repeatedly asked for it back, and S.P. refused. O.H. also asked J.G.B. for the phone, and J.G.B. told him to leave.
The 4 men in the S.P./J.G.B. group started to walk away with the phone. O.H. followed, demanding the phone.
There was pushing between J.G.B. and O.H.; O.H. does not recall who started it.
After J.G.B. pushed him twice, O.H. grabbed him and pushed him against the wall, with hands on his chest. O.H. was "aggravated" because they wouldn't return his phone.
O.H. let go. J.G.B. began punching him in the head with a closed fist. He punched him in the nose and above the eyebrow, at least 10 times.
At some point, S.P. showed O.H. an extendable baton. O.H. does not remember if it was before or after the fighting started.
O.H. did not punch back; he tried to cover his face with his hands. He was afraid of getting hit from behind by S.P.'s extendable baton.
The other two men circled as the fighting went on.
O.H. was taken to hospital by ambulance. He suffered a bloody nose, bump on the head, and a concussion. For a week he was dizzy when he got out of bed, and had headaches.
O.H.'s phone was not recovered.
[6] In cross-examination, O.H. testified as follows:
When asked by police if he knew why the boys attacked him, he speculated that it might be because two years ago they thought he had an altercation with one of their friends, a man named T. or perhaps S.
He agreed that he told a police officer right after the incident that it was J.G.B. who had taken his phone from his pocket. He testified that perhaps J.G.B. then handed the phone to S.P. O.H. agreed that he must have said this if it was in the officer's notes. He said that he was confused, bleeding, and dizzy right after the incident. He was not asked to review the notes and sign them.
O.H. did not remember whether S.P. had extended his baton or not, and he did not remember whether S.P. had the baton in his pocket or backpack.
S.P. was not violent to him.
Alex Moorhouse
[7] Alex Moorhouse testified about the part of this incident witnessed by him. Mr. Moorhouse is 34 years old, and works at the Backyard Ax Throwing League, located at the Galleria. He has also worked as a bouncer for 15 years.
[8] On January 25, 2017 Moorhouse had come outside for a smoke break, when he witnessed what he described as "4 kids attacking 1 guy", a guy whom he later learned was O.H. Moorhouse was about 30-40 feet away when he saw them. He did not see how the fight started.
[9] Moorhouse's evidence is that he saw the "one guy" hold on to one of the boys, and that they "rushed him". All four boys were "in it". Someone yelled "give me the fucking phone". One boy was going through O.H.'s pockets, the front left pocket; he was also punching and grabbing at O.H. Others were pulling O.H.'s clothes and throwing him against the garbage bins nearby. Two were hitting him in the face. O.H. was punched "at least 20 times", in the nose, on the head, "all over the place". O.H. was "a bloody mess".
[10] Moorhouse described O.H.'s actions as "real defensive"; he held on, and tried to push back and forth.
[11] Moorhouse said that he and two other onlookers yelled, and the boys attacking O.H. ran away.
[12] Moorhouse rushed over, and intervened. O.H. was "staggering" and bleeding profusely. Moorhouse took him into his business and cleaned him up. O.H. had no phone, and Moorhouse called his family. O.H. vomited. Moorhouse waited with him until the ambulance came.
[13] In cross-examination and on being shown a portion of the video surveillance, Moorhouse testified as follows:
When Moorhouse was alerted to the incident, he did not run but walked over to O.H. and the boys around him.
During the fight, one boy was facing O.H., throwing punches. O.H. tried to get him in a bear-hug, to hold his arms, and there was pushing back and forth. Another boy was going through O.H.'s pockets.
Moorhouse was not asked by police to give a description of O.H.'s assailants and although he thought he "might" see two of them in the court room, he was not sure.
When Moorhouse gave a statement to police, he said that four boys surrounded O.H., but one "took off" immediately. Moorhouse agreed in cross-examination that he could not say that the fourth boy had been hitting O.H.
J.G.B.
[14] J.G.B. testified that he went to the Galleria mall that day with S.P. and two "other kids" to "confront" O.H. He wanted to confront him because O.H. had bullied a family friend, S.V., who was autistic. O.H. had put S.V. in a headlock. He wanted O.H. to stop bullying him.
[15] J.G.B. identified himself in the video as the person in a gray jacket with white pants who was facing O.H. His evidence, told as the surveillance video ran, is as follows:
S.P. called O.H. over to the group.
J.G.B. asked him why he was bullying S.V. O.H. replied, because "he's a retard".
J.G.B. felt O.H. was "in my face".
J.G.B. tried to shake O.H.'s hand, but lost his balance and fell against him.
O.H. called J.G.B. "a bitch"; J.G.B. shoved O.H., "to get him away".
J.G.B. didn't want to fight. He thought that O.H. would punch him.
O.H. said "I'm going to kick your ass if you get involved". J.G.B. pushed him again.
O.H. kept coming at J.G.B., trying to start a fight.
J.G.B. wanted to get away, and tried walking away, but O.H. came "charging" at him. J.G.B. was afraid O.H. would come up from behind and throw him on the floor. O.H. threatened to stomp on J.G.B.'s face.
O.H. started choking J.G.B. J.G.B. told him to let go; he felt like he couldn't breathe.
O.H. got J.G.B. into a headlock. J.G.B. started hitting him to get him off. J.G.B. hadn't hit O.H. previously.
It is S.P. who is seen walking away in the video.
[16] In cross-examination, J.G.B. testified as follows:
I heard about O.H. putting S.V. in a headlock from my friend James.
Actually, I saw O.H. do it, about 2-3 weeks before the fight at the Galleria. I was about 30-50 feet away, and didn't hear what O.H. and S.V. said. James told me.
I talked to S.V. that day—he was hard to understand, but said that "he hurt me". I didn't approach O.H. He was with friends, and later walked away.
Later I tried messaging O.H., but he didn't answer.
I didn't know O.H., and had no contact with him before the fight on January 25, 2017.
Before the fight, I messaged people on Instagram, asking if they knew where O.H. hung out. Someone said it was a Wallace Community Centre, by the Galleria.
I went to the Galleria that day with 3 guys "for support". S.P. was one. I don't know the names of the other two—their real names or Instagram names. One of them was the one who told me that O.H. hung out at Wallace Community Centre.
We arranged to meet at the skate park near the Galleria on January 25, 2017.
I didn't bring these two guys with me for support in the meeting with O.H. I just wanted them to "point him out".
I didn't want to get revenge; I didn't feel safe going by myself.
I was angry when O.H. called S.V. "retarded". I asked him again if he was going to stop bullying, but he was still "rude".
I shook his hand, to be "nice"; I didn't want to be "rude". He tugged on me, to "cause a fight".
I didn't see S.P. or anyone take O.H.'s phone.
O.H. caused a bruise on my neck. I didn't report this to police, that day or ever.
I did hit O.H. with a closed fist, many times, "well over five". I was fearful of him.
The Surveillance Video
[17] The surveillance video showing this incident is approximately 6 minutes in length. It is not a close up focus, but shot from a distance in the parking lot. O.H. and J.G.B. and S.P. were described and identified in evidence, and are visible on the video.
[18] The video shows the following:
J.G.B., S.P., and two other males are standing together in the parking lot near a mall exit, apparently waiting.
O.H. is seen walking alone eastbound, some distance south of the group. He passes by; they follow him. He reaches the southwest corner of the LCBO building, and disappears from view, then quickly returns.
All four males are seen standing around O.H. No violence is apparent.
Over the next minute, the 4 males circle around O.H. J.G.B. pushes O.H. hard on the chest, three times. The 3 other boys are circling them as this happens.
After the third push O.H. grabs J.G.B.'s arms in a bear hug. J.G.B.'s right arm and hand make punching motions. J.G.B. and O.H. grapple, and O.H. pushes J.G.B. against the wall. S.P. moves away from the group.
O.H. and J.G.B. continue thrashing about on their feet. The two other males are standing close around O.H., with arms moving.
By this time, 3 passers-by, including Moorhouse, have come forward.
S.P. returns to the group, and all four walk away casually, going west bound.
The Law
[19] This is a case in which credibility is in issue. In assessing the evidence, I have in mind the directions given by Justice Peter Cory for the Supreme Court of Canada in R. v. W.D. (1991), 63 C.C.C. (3d) 397, as applicable to a judge sitting alone:
In a case where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue. A trial judge might well instruct the jury on the question of credibility along these lines:
- First, if you believe the evidence of the accused, obviously you must acquit.
- Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
- Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
[20] In this analysis, a trier of fact may conclude that she is unable to determine whether to believe an accused's testimony or not. In that case, the accused is entitled to an acquittal.
[21] Cases that follow and apply W.D have emphasized that the court's direction in that case is not a rigid formula. It is particularly important that evidence must not be assessed piecemeal; all of the evidence introduced by the Crown and the defence must be considered in its totality. In assessing evidence, some factors which are of assistance are the internal consistency of a witness's evidence, the consistency of a witness's evidence with that of other witnesses, and the harmony of a witness's evidence with the "probabilities which a practical and informed person would recognize as reasonable" in a particular place under particular conditions.[1]
[22] The Crown bears the burden of proving the elements of an offence beyond a reasonable doubt throughout the trial.
[23] In this case, J.G.B. admits that he punched the complainant O.H. many times, and does not contest evidence about the injuries that O.H. suffered as a result. Absent a consideration of self-defence, a finding of guilt would issue. However, J.G.B. submits that he acted in self-defence.
[24] When self-defence is raised, the court is required first to consider whether there is an air of reality to that position—in other words, whether there is any evidentiary basis for the argument. In making this preliminary assessment the court does not assess credibility or weigh evidence or make findings of fact. The court is simply deciding whether there is any evidence to support the defence.[2]
[25] If the court finds that a defendant's self-defence argument has an air of reality, then, the three-pronged test set out in section 34 of the Criminal Code applies:
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.
Factors
(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.
No defence
(3) Subsection (1) does not apply if the force is used or threatened by another person for the purpose of doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully.
[26] In considering the third issue, whether the force used to repel an attack is reasonable, a trial judge shall consider the relevant circumstances of the defendant, the other parties, and the act, including but not limited to the factors set out in s. 34(2) of the Criminal Code. The relevance of any factor in determining whether the act committed was reasonable is a matter for the trier of fact to determine.[3]
[27] The burden is on the Crown to demonstrate beyond a reasonable doubt that the defendant was not acting in self-defence. In other words, the Crown must establish on a balance of probabilities that at least one of the conditions set out above does not apply.
Positions of the Parties
[28] J.G.B.'s lawyer submits as follows in arguing that J.G.B. was acting in self-defence:
J.G.B. reasonably believed that O.H. was using force against him. O.H. started the fight by grabbing J.G.B.'s hand. O.H. then made threats, and didn't leave the scene.
It was not until O.H. had him in a headlock that J.G.B. threw a punch. J.G.B. believed that he would be injured if he did not do this.
J.G.B.'s actions were reasonable in the circumstances. He was afraid of O.H., who was bigger than him.
[29] The Crown submits that J.G.B.'s evidence should be rejected in its entirety. He says that J.G.B. was an evasive witness and that his narrative is contrary to common sense.
[30] Crown counsel says that O.H. was credible and forthright in his evidence. He acknowledged that O.H. may have been confused in his statement to police immediately after the incident—in which he said that it was S.P. and not J.G.B. who took his phone—but this is understandable, as he was suffering from a concussion.
[31] Crown counsel argues that O.H.'s evidence about the assault is corroborated by the evidence of Moorhouse, by the video, and by the evidence of J.G.B. himself, who testified as to a motive to attack O.H.—his anger at his treatment of a family friend. He says that the video shows J.G.B. and his gang surrounded O.H., that J.G.B. threw the first punch, and that S.P. took O.H.'s cell.
[32] Finally, the Crown submits that J.G.B.'s response was not proportionate.
[33] S.P.'s lawyer submits that there is no evidence that should be accepted establishing that O.H. even had a phone, let alone that his client stole that phone. He points to the confusion in O.H.'s evidence as to who took his phone. He points to Moorhouse's testimony; he never saw a baton or a phone, and testified that it was S.P. who walked away from the scene when fighting broke out.
Air of Reality
The air of reality test does not involve a high burden.[4] I find that there is evidence which, if accepted, would lend an air of reality to this defence. O.H. is taller and heavier than J.G.B. J.G.B.'s evidence is that on the day in question, O.H. struck the first blow, and began to choke him; he had trouble breathing. J.G.B.'s evidence is that then O.H. put him in a headlock, and his breathing became even more difficult. J.G.B.'s evidence is that he was afraid of O.H., and that he punched him to repel the attack.
Credibility and Reliability
O.H.
[34] I find O.H. to be a straightforward and credible witness. He did not attempt to overstate his evidence, and admitted to facts which were not to his advantage. For example, he testified that he was not sure who struck the first blow or push. He admitted that at some point he grabbed J.G.B. and pushed him against the wall because he was "aggravated".
[35] However, O.H. was concussed and dizzy after the incident. As a result, his evidence may not be reliable on every issue. For example, he told police that S.P. took his phone; at trial, his evidence was that J.G.B. took his phone. On issues where his evidence conflicts with that of J.G.B., I look to see whether there is other reliable evidence on the issue.
Alex Moorhouse
[36] I found Moorhouse to be a credible and reliable witness. He did not know any of the participants in the fight, and had no interest in the outcome of this trial. He was reasonably close to the event—about 30 feet away from the action. Because of his background as a bouncer, he had some experience in assessing the actions of participants in the fight as to whether those actions were defensive or offensive.
[37] Moorhouse testified that during the fight he heard someone yell "give me the fucking phone". That someone was apparently O.H., demanding the return of his phone.
[38] I accept that during the part of the interaction Moorhouse witnessed, J.G.B. and his companions were the aggressors and O.H. was only trying to defend himself. However, Moorhouse did not see the entire incident. The fight started before he came outside.
The Surveillance Video
[39] Although the video was shot from a distance and did not allow a close-up view of the fight, it is reliable on certain issues. From the video, it is clear that at all times O.H. is surrounded by J.G.B. and two or at times three males. From the video, it is clear that, contrary to his evidence, J.G.B. did not attempt to walk away from O.H. during this incident, but instead pursued him in a confrontational manner, pushing his chest three times and then punching him in the head.
J.G.B.
[40] I did not find J.G.B. a credible or reliable witness in most respects.
[41] I do accept that J.G.B.'s reason for seeking out and confronting O.H. was that he perceived that O.H. had wronged a friend. O.H. provides some corroboration of this. When asked by police if he could think of a reason why he was attacked, he said that it might have been because they thought he had a prior altercation with a boy named S.V.
[42] I do not accept J.G.B.'s evidence as to his intention in seeking out O.H., the sequence of actions in the fight, his alleged fear, or whether he attempted to retreat before the final punches were delivered. I say this for the following reasons:
J.G.B.'s evidence is inconsistent with what is apparent from the surveillance video. The video shows J.G.B. and three males approaching and surrounding O.H. After a brief period, arms start flailing. The first clear assault comes when J.G.B. forcibly pushes O.H. back, hands on his chest, continuing to advance after the push. There are three such pushes before O.H. appears to react, trying to grab J.G.B.'s arms in a bear-hug.
J.G.B.'s evidence is inconsistent with the evidence of Moorhouse. J.G.B. described a sequence of events in which he was always acting in a defensive manner, attempting to move away from O.H. Moorhouse testified that it was O.H. who was taking defensive positions throughout the time he viewed the fight. As noted above, there is no point at which J.G.B. starts to retreat, as he claimed in his evidence.
J.G.B. was evasive. His evidence on several important points was not believable.
J.G.B.'s evidence that he did not know the names of the two males he recruited to come with him and S.P. is unbelievable. He says he contacted them electronically and recruited them to come to the mall. They stayed with J.G.B. throughout the confrontation.
J.G.B.'s claim that he recruited these males simply to identify O.H. is also unbelievable. O.H. testified that he knew both J.G.B. and S.P. from contacts at the mall. J.G.B. testified that he had seen O.H. at the mall (when he was bullying his friend S.V.) just 2-3 weeks before. In J.G.B.'s recounting of the events of January 25th, it is S.P., not one of the two males, who calls to O.H. as he is crossing the parking lot.
In other testimony, J.G.B. said that he enlisted S.P. and the two males to come with him to his meeting with O.H. for "support". This statement is descriptive of what actually transpired on January 25th. It is J.G.B. who used the term "confront" to describe his intention in meeting O.H. that day.
J.G.B.'s testimony that he shakes O.H.'s hand to be "nice"—after O.H. dismisses his complaint about bullying—is also unbelievable. J.G.B. admitted that he was angry and upset when O.H. did not admit and apologize for his bullying.
Findings of Fact
[43] As indicated above, I do not accept J.G.B.'s evidence on the critical issues in this case. Further, his evidence does not raise a reasonable doubt in my mind. After my review of all the evidence, I make the following findings of fact in this case:
J.G.B. believed that O.H. had mistreated a friend.
J.G.B. wanted to pay O.H. back for this wrong-doing. He planned to confront him at the Galleria mall, a place he knew that O.H. frequented.
O.H., although younger than J.G.B., was taller and heavier than him.
J.G.B. enlisted the support of three friends, S.P. and the two unnamed males, to come as back-up with him to the mall to confront O.H.
At the outset of the encounter, O.H.'s phone was taken by someone in this group. The evidence does not establish beyond a reasonable doubt who that person was.
It is not clear who made the first physical contact during this confrontation, but the first visible aggressive move came from J.G.B., who forcibly pushed O.H. on the chest.
J.G.B. pushed O.H. three times before O.H. attempted to grab him by the arms.
During the entire incident, O.H. was always surrounded by J.G.B. and two to three other males.
O.H. was responding in a defensive manner.
J.G.B. did not attempt to walk away at any point until the end of the incident, when he and his associates all left.
J.G.B. punched O.H. in the face at least 10 times, causing the injuries described.
Application of the Law to the Facts
[44] Based on the facts I have found and my assessment of the evidence as a whole, it is possible that J.G.B. reasonably believed that O.H. used force against him, or threatened such force. O.H. allowed that he might have made the first physical contact in his efforts to secure the return of his phone.
[45] However, based on all the evidence, I am convinced beyond a reasonable doubt that the Crown has negatived the reasonable possibility that J.G.B. was acting to defend himself. J.G.B. wanted to punish O.H. for a perceived wrong against his friend. He assembled a posse to do so. He attacked O.H. until he drew blood.
[46] In the event that I am in error in this conclusion, I find that the Crown has established beyond a reasonable doubt that J.G.B.'s actions, even if aimed at defending himself, were not reasonable in the circumstances. In making this assessment, I considered in particular the following factors:
Although O.H. was bigger and heavier than J.G.B., J.G.B. had the support of three associates in the fight.
O.H. was not armed.
J.G.B. was the instigator of the incident.
J.G.B., with the back-up of his friends, could have withdrawn from the interaction at any time and did not do so.
J.G.B.'s response to any threat he perceived was not proportionate. I appreciate that a defendant is not required to "weigh with nicety" the force used in response to the perceived use or threat of force.[5] However, J.G.B. went far beyond what would have been necessary to slow O.H. down to allow J.G.B. to leave.
[47] I find that J.G.B. is guilty of assault causing bodily harm to O.H.
[48] With respect to the charge of robbery of the cell phone, although I have found that someone in the group of four took the phone, I do not find that theft of the phone was the purpose of the attack and cannot find beyond a reasonable doubt that J.G.B. or S.P. were parties to the theft. I dismiss that charge.
Released: December 14, 2017
Signed: Justice E. B. Murray
Footnotes
[1] Faryna v. Chorny (1952), 2 D.L.R. 354 (BCCA), as quoted in R. v. Edwards, 2012 ONSC 3373
[3] R. v. Bengy, 2015 ONCA 397