Ontario Court of Justice

Date: 2018-05-09

Court File No.: Peterborough 172402

Between:

Her Majesty the Queen

— AND —

Amanda Hussey

Before: Justice S.W. Konyer

Heard on: April 25, 2018

Reasons for Judgment released on: May 9, 2018

Counsel

Mr. A. Midwood — counsel for the Crown

Mr. D. McFadden — counsel for the defendant Amanda Hussey

KONYER J.:

Facts

[1] Amanda Hussey is charged with an assault causing bodily harm to Holly Robertson on October 30, 2016 following an altercation on the dance floor of The Junction, a Peterborough nightclub. Ms. Hussey struck Ms. Robertson in the face with her hand, in which she was holding a glass. The glass broke, cutting both women. Ms. Robertson's forehead was cut, and required 18 stitches.

[2] The only issue raised at trial was consent. Ms. Hussey, who testified in her own defence, claimed that she responded with a reflex action to a punch thrown at her by Ms. Robertson. I must decide first whether there is an air of reality to her claim that these events constituted a consensual fight. If so, then I must go on to consider whether the Crown has proven beyond reasonable doubt that Ms. Hussey intended to cause bodily harm. To decide these issues, it will be necessary to first review the evidence heard at trial.

[3] At trial, I heard testimony from three Crown witnesses: Ms. Robertson, her boyfriend Greg Davidson, and Shianne Tovey, a security guard from The Junction. I also viewed surveillance footage of the dance floor. Ms. Hussey was the only witness for the defence.

Evidence

[4] On the evening of October 29, Ms. Robertson and Mr. Davidson had gone out to celebrate Halloween. They consumed some alcohol with friends at home, and then went to at least one other bar before arriving at The Junction. Both were moderately intoxicated by the time the events I am concerned with occurred. They were each dressed in costume, as were most people on the dance floor in the video surveillance that I observed. Ms. Robertson was dressed as an angel, while Mr. Davidson wore a cowboy costume.

[5] Meanwhile, Ms. Hussey had travelled with her boyfriend that night from her home in Norwood to a house party in downtown Peterborough. They arrived around midnight. She had one drink before joining a group of people who were walking to The Junction, which was hosting a Halloween Party. She became separated from her boyfriend inside the crowded bar and was dancing with a female that she had just met that night on the walk to The Junction. She had purchased a mixed drink at the bar, and was holding the glass in her hand as she danced.

[6] At around 1:20 a.m. on October 30, according to the time stamp on the dance floor video, Ms. Robertson and Mr. Davidson were slowly making their way off the crowded dance floor. The female dancing with Ms. Hussey removed Mr. Davidson's cowboy hat from his head, and can be seen holding it above her head as she continued to dance with Ms. Hussey. Mr. Davidson was not upset about his hat, and considered the matter a simple prank. Ms. Robertson, however, was not amused. After a brief conversation with Mr. Davidson, she marched across the dance floor and grabbed the hat from the unknown female. They engaged in a short pulling match over the hat. Both Mr. Davidson and Ms. Hussey quickly moved towards the two women, and both said it was their intention to separate them.

[7] Ms. Robertson has no memory of the events after this point. Her next memory is of being on the floor with people standing over her. Ms. Hussey testified that as she moved towards the pulling match, Ms. Robertson threw a punch at her. Although this cannot be clearly seen on the video due to the close crowding of people on the dance floor, the video does show Ms. Robertson's right shoulder move forward in a lunging motion towards Ms. Hussey. After seeing Ms. Robertson's fist come towards her face, Ms. Hussey testified that she reacted instinctively by punching back, not realizing that she was still holding a drink in her hand. The video confirms that Ms. Hussey's reaction was virtually instantaneous.

[8] From this point, the video shows Ms. Davidson and Ms. Hussey locked together in a brief struggle, each holding the other by the hair. They grappled and pushed through the crowd until falling to the floor. They were then separated by a number of people, including Mr. Davidson. It is only at this point that anyone realized they were both bleeding – Ms. Robertson from her forehead, and Ms. Hussey from her hand. The entire sequence from the time the cowboy hat was removed until the two women were pulled apart lasts approximately 1 minute.

[9] From his vantage point, Mr. Davidson only saw Ms. Robertson being attacked, which he believed was unprovoked. He did agree, however, that Ms. Robertson was upset about his cowboy hat being taken, and that she marched purposefully onto the dance floor to retrieve the hat while upset. He also agreed that the video showed Ms. Robertson make a lunging motion towards Ms. Hussey immediately before she was struck by Ms. Hussey.

[10] After the two women were separated, an ambulance was called for Ms. Robertson, and Ms. Hussey was treated for injuries to her hand by Ms. Tovey, the security officer.

Legal Analysis and Decision

[11] In my view, there is an air of reality in these circumstances to Ms. Hussey's claim that she and Ms. Robertson engaged in a consensual fight. There is some evidence that Ms. Robertson initiated the physical confrontation, and that Ms. Hussey responded in a reflexive manner. As such, the onus is on the Crown to prove a lack of consent beyond reasonable doubt. In circumstances like this case, where bodily harm is inflicted, this means the Crown must prove beyond reasonable doubt that Ms. Hussey intended to inflict bodily harm: see R. v. Jobidon, [1991] S.C.J. No. 65, at para. 125; R. v. Paice, 2005 SCC 22, [2005] S.C.J. No. 21, at para. 18; R. v. Zhao, [2013] O.J. No. 2010 (C.A.), at para. 88.

[12] In my view, the Crown has not met this onus. I accept Ms. Hussey's testimony that she did not wish to inflict harm on Ms. Robertson. The conflict occurred as a result of a prank perpetrated by her dance partner on Ms. Robertson's boyfriend. I find that both Ms. Hussey and Mr. Davidson responded to the escalating conflict over the cowboy hat as peacemakers. I believe both of them that they had the intention of preventing violence, not instigating a fight. What is clear from the video is that Ms. Robertson responded violently to Ms. Hussey's intervention. I believe Ms. Hussey when she says that Ms. Robertson threw a punch at her, and I believe Ms. Hussey when she says she reacted instinctively by throwing a punch in return.

[13] Ms. Hussey did not respond by throwing her glass at Ms. Robertson, which would have been more consistent with a deliberate intention to inflict bodily harm. Rather, she responded to an attack with a fist in a similar manner. I have no reason to disbelieve her testimony that she responded in a reflexive manner without thinking about the fact that she was holding a drink. She too ended up being cut from the broken glass, which supports her claim that her actions were reflexive rather than deliberate. Further, it is clear from the evidence as a whole that no one was aware anyone had been cut until the two women were pulled apart, which also supports Ms. Hussey's claim that the actions were sudden and impulsive. In these circumstances, I cannot be sure that Ms. Hussey intended to inflict serious bodily harm as opposed to simply punching back. Since I have a reasonable doubt that she intended to inflict bodily harm, it follows that I must find Ms. Hussey not guilty.

Released: May 9, 2018

Signed: Justice S. W. Konyer