Court File and Parties
Ontario Court of Justice
Date: 2018-05-08
Court File No.: Halton 16-3265
Between:
Her Majesty the Queen
— and —
John Fontyn
Before: Justice D.A. Harris
Heard on: January 31 and March 19, 2018
Reasons for Judgment released on: May 8, 2018
Counsel:
- Harutyun Apel, for the Crown
- Kevin McCallum, for the defendant John Fontyn
Reasons for Judgment
D.A. HARRIS J.:
The Charge
[1] John Fontyn is charged with assault causing bodily harm to Keith Demoe on October 5, 2016 in the Town of Oakville.
[2] Crown counsel elected to proceed summarily.
[3] Mr. Fontyn pled not guilty and a trial was held.
Evidence
[4] Mr. Demoe and Michael Scott testified as Crown witnesses.
[5] Mr. Fontyn and his son, Sean Fontyn testified for the defence.
[6] There is no issue that Mr. Fontyn made physical contact with Mr. Demoe in Oakville on October 5, 2016 and that Mr. Demoe suffered bodily harm as a result.
Issues
[7] The issues are whether the contact was accidental and whether Mr. Fontyn was defending his son.
[8] The onus is on the Crown with respect to both issues.
The Standard of Proof
[9] Mr. Fontyn, like every other person charged with a crime, is presumed to be innocent, unless and until the Crown has proven his guilt beyond a reasonable doubt. He does not have to present evidence or prove anything. It is not enough for me to believe that he is probably or likely guilty. Proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt. Conversely it is nearly impossible to prove anything with absolute certainty and the Crown is not required to do so. Absolute certainty is a standard of proof that does not exist in law. However I must remember that "the reasonable doubt standard ... falls much closer to absolute certainty than to proof on a balance of probabilities"[1].
[10] This is a tough standard and it is so tough for very good reason. As Cory J said in R. v. Lifchus:
The onus resting upon the Crown to prove the guilt of the accused beyond a reasonable doubt ... is one of the principal safeguards which seeks to ensure that no innocent person is convicted[2].
First Issue: Intentionality
[11] So, with respect to the first issue, the Crown must prove beyond a reasonable doubt that Mr. Fontyn intended to make physical contact with someone without their consent.
[12] Mr. Fontyn testified that he did not mean to make contact with anyone and that in any event, he did what he did in order to defend his son.
[13] Accordingly, the principles in R. v. W(D)[3] are applicable.
[14] If I believe the testimony of Mr. Fontyn I must find him not guilty.
[15] Even if I do not believe his testimony, if it leaves me with a reasonable doubt, I must find him not guilty.
[16] Even if his testimony does not leave me with a reasonable doubt about his guilt, if after considering all the evidence that I do accept, I am not satisfied beyond a reasonable doubt of his guilt, I must acquit.
[17] I cannot say that I believed Mr. Fontyn.
[18] I cannot say that his evidence on its own left me with a reasonable doubt as to his intention.
[19] I can say that after considering all the evidence that I do accept, I do not know what to believe. I am not satisfied that the Crown has proven the necessary intention beyond a reasonable doubt.
Analysis of the Evidence
[20] Mr. Demoe testified that he thought Mr. Fontyn had tried to hit him (Mr. Demoe).
[21] Mr. Scott testified that he thought Mr. Fontyn was trying to hit him (Mr. Scott) and that he hit Mr. Demoe by accident.
[22] Mr. Fontyn testified that he did not mean to hit anybody. He was merely trying to get his body between Mr. Scott and his son, Sean and that the contact with Mr. Demoe was an accident.
[23] The video that was entered into evidence does not really support one version over the others except that it shows that Mr. Demoe was wrong about some things that he said while testifying. For example, he suggested initially that Mr. Fontyn had his goalie stick in his left hand. When shown the video, he changed that to suggest that Mr. Fontyn had the stick in both hands and was attempting to cross-check him. In my view, the video clearly shows the stick in Mr. Fontyn's right hand only.
[24] I also note that Mr. Demoe was struck in the head during all of this and suffered significant injuries. So, while I have no reason to doubt Mr. Demoe's credibility, the circumstances are such that I cannot say that his recollection of the events was reliable.
[25] There was no evidence before me that would lead me to believe that Mr. Fontyn had any motive to hit Mr. Demoe. Mr. Demoe was not doing anything that might upset Mr. Fontyn at all, let alone to the point of assaulting him with a goalie stick.
[26] There was also little evidence that would lead me to believe that Mr. Fontyn was trying to hit Mr. Scott. There was simply no reason for him to do that. Sean Fontyn was giving at least as well as he was getting in his altercation with Mr. Scott and there would appear to have been more "chirping" than serious physical contact between the two of them.
[27] In any event, after hearing all of the witnesses, and watching the video, the most that I can say is that Mr. Fontyn did hit Mr. Demoe with his stick and that this might have been the result of him intentionally trying to hit Mr. Scott. If so, this element of the offence is made out. However, it might have been an accident.
[28] Mr. Fontyn is entitled to the benefit of the doubt in my mind and the charge is dismissed.
Second Issue: Defence of Third Party
[29] In light of this finding, there is no need to address the second issue, but I will do so out of an abundance of caution.
[30] With respect to the defence of third person argument, I note the following.
[31] The Crown must also prove beyond a reasonable doubt that the defence of defence of third person did not apply.[4]
[32] Accordingly, although it is not mandatory to do so[5], I would have instructed myself that:
(1) If I accept Mr. Fontyn's evidence, and on the basis of it, I believe or have a reasonable doubt that he was acting in lawful defence of his son, I must find him not guilty.
(2) Even if I do not accept his evidence, if, after considering it alone or in conjunction with the other evidence, I believe or have a reasonable doubt that he was acting in lawful defence of his son, I must find him not guilty.[6]
[33] Had I needed to consider the defence of third party argument, I would have been satisfied beyond a reasonable doubt that it was not applicable here. My reasons for this are as follows.
Section 34 of the Criminal Code
[34] Section 34 of the Criminal Code provides that:
- (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.
Application of Section 34
[35] I am satisfied that Mr. Fontyn could not believe, on reasonable grounds, that what Mr. Scott was doing constituted a threat of force against Sean Fontyn.
[36] I am also satisfied that any physical intervention by Mr. Fontyn was not reasonable here.
[37] My reasons for reaching those conclusions are as follows.
[38] Mr. Scott was using no more force or posing any more threat than occurs regularly in such "beer league" hockey games.
[39] There was no imminent threat of a use of force. There were other means available to respond and Sean Fontyn was employing those other means.
[40] Mr. Fontyn was not part of this situation and had no business interjecting himself into it.
[41] Neither Mr. Scott nor Sean Fontyn were using their hockey sticks as weapons, at least not to any degree exceeding fairly regular behaviour in hockey played at that level.
[42] Both young men were of similar size, age and physical ability. Sean Fontyn seemed to be handling things just fine.
[43] There had been no prior history of threats or use of force. There had been no history of communication between them.
[44] There was no need for Mr. Fontyn to inject himself into the situation in any way and as it turned out, his decision caused far more trouble than it prevented.
[45] For all of these reasons I would have been satisfied that this defence was not applicable here.
Conclusion
[46] I did not however have to decide that issue as the Crown failed to prove beyond a reasonable doubt that Mr. Fontyn intended to hit either Mr. Demoe or Mr. Scott. Accordingly the charge is dismissed.
Released: May 8, 2018
Signed: Justice D.A. Harris
Footnotes
[1] R. v. Starr, 2000 SCC 40, [2000] S.C.J. No. 40 (S.C.C.) at para. 242.
[2] R. v. Lifchus, [1997] S.C.J. No. 77 (S.C.C.) at para. 13.
[3] R. v. W(D), [1991] S.C.J. No. 26 (S.C.C.).
[4] R. v. Bengy, 2015 ONCA 397, [2015] O.J. No. 2958 (Ont.C.A.) at paras. 95 and 96.
[5] R. v. Rogers, [2015] O.J. No. 2955 (Ont.C.A.) at para. 76, leave to appeal to S.C.C. denied at [2015] S.C.C.A. No. 448. See also R. v. Bengy, supra.
[6] R. v. K.E.R., [2003] O.J. No. 2822 (Ont. C.A.) per Moldaver J.A. as he then was, at para. 72.