Court File and Parties

Ontario Court of Justice

Date: 2018-03-21

Court File No.: Milton 16-3548

Between:

Her Majesty the Queen

— and —

Rachad Quintyne

Before: Justice P.T. O'Marra

Heard on: November 27, 28, 29, 2017

Reasons for Judgment released on: March 21, 2018

Counsel:

• John Dibski, counsel for the Crown
• Harold Fink, counsel for the defendant Rachad Quintyne

Judgment

O'Marra P.T. J.:

The Charge

[1] The defendant, Rachad Quintyne was charged that on October 4, 2016 he allegedly assaulted Justin Vieira (hereinafter referred to as "J.V.") and thereby caused bodily harm. The Crown elected to proceed by summary conviction. The trial lasted three days.

[2] The Crown called the following witness: Jennifer Simmonds, Sergio Dacosta, Justin Kirke (hereinafter referred to as "J.C."), Hailey MacArthur, J.V. and Allan McIssac. The defendant was called by the defence.

The Allegations

[3] On October 4, 2016, J.V., J.C., Hailey MacArthur and Allan McIssac attended the Kelseys Restaurant and Bar to watch the Toronto Blue Jays play the Baltimore Orioles. During the course of the evening Ms. MacArthur was texting and snap chatting with her friend, the defendant, who is black. At the time, the defendant was at his home in Mississauga.

[4] After Ms. MacArthur finished corresponding with the defendant, J.C. grabbed Ms. MacArthur's smart phone off the table and began to message the defendant. J.C. messaged racial slurs and epithets to the defendant. It was alleged that J.C.'s friend, J.V. who was intoxicated joined in the banter. J.C. and J.V. taunted the defendant and it was agreed that the parties meet up or fight.

[5] The defendant attended Kelseys with two other male blacks. They waited in two cars in the parking lot. When J.C., J.V., Ms. MacArthur and Mr. McIssac exited the Kelseys they were approached by the defendant and his two friends. One of the three males had a baton in his hand. That unidentified individual asked "which one of you guys called my cousin a nigger?" The defendant pointed out J.C., J.C. ran and the individual with the baton chased him.

[6] It was alleged that the defendant and the other unidentified male punched J.V. several times, and while J.V. was on the ground he was kicked and punched by both the defendant and the other male party.

[7] As a result of the attack, J.V. suffered the following injuries: A fractured finger on his left hand, cracked ribs, a damaged cheek ligament, split plate in his skull, a baseball size contusion to his forehead. During the attack he lost consciousness.

The Evidence at Trial

Jennifer Simmonds

[8] On October 4, 2016, Ms. Simmonds attended Kelseys with her boyfriend, Sergio Dacosta to watch the baseball game. Ms. Simmonds testified that she drank very little alcohol that evening. Ms. Simmonds had a clear recollection of the incident. She testified that she and her boyfriend went outside to have a cigarette. While she was watching the game through the window she noticed that Mr. Dacosta's attention was diverted to her right. Ms. Simmonds heard someone say "He has a tree" and loud footsteps behind and to her left. She described the footsteps as "loud sort of running, kind of hard hitting the pavement". Then she witnessed a "white gentleman" run around to the other side of the Kelseys building. She had seen the white gentleman in the Kelseys previously as he was in Blue Jay clothing attire. She testified that a black male with a "branch" or "stick" chased the white male. The black male stopped and turned back and headed to her right. To her right Ms. Simmonds observed J.V. on the ground in the fetal position with his arms protecting his head and two other black males punching him. J.V. was not fighting back. At this point Mr. Dacosta said "that's enough" and all three black males ran back to their cars. Ms. Simmonds felt that the male with the stick did not get involved in the attack on J.V. Ms. Simmonds found a shirt and a ring on the ground and brought it over to J.V. J.V. stated that he lost a chain that was his father's. Before the males fled, Ms. Simmonds heard a male say "I am not getting involved"[1].

Sergio Dacosta

[9] Mr. Dacosta joined his girlfriend to watch the Blue Jays game at Kelseys. He drank one beer as he was driving that night. He did not know any of the parties involved. He testified that when he was outside having a cigarette he heard someone say "He's brought the whole gang" and "he brought a whole tree". This statement came from the three men and woman that left Kelseys. Mr. Dacosta looked in the other direction and saw three black males approach from a car. He testified that one of the black males had a stick in his hand. He described the stick as a cut down broomstick and approximately a foot and half long. He testified that it was never used in the fight. The two groups argued. He testified that he could not make out what the argument was about. He heard one of the males that came out of Kelseys say "This has got nothing to do with me". A second male (identified later as J.C.) from the Kelseys ran away and was chased by the black male with the stick. Mr. Dacosta testified that the situation "turned into two on one". However, he testified that before it turned two on one for a "split second" the fight was one on one. It was obvious to Mr. Dacosta that J.V. was overcome by the two male blacks. They punched J.V. and pulled his shirt in order to knock him off his balance. He was punched and kicked before he was knocked to the ground. While on the ground, J.V. was kicked and stomped on the head. The black male that chased J.C. returned and according to Mr. Dacosta kicked J.V. in the head as one of the black males returned to the car. He also said "Say that to my cousin again". J.V. did not fight back. He just laid there. Mr. Dacosta asked the men to stop the attack. Mr. Dacosta testified that the kicks and punches were to the head and rib area. He felt that Mr. Dacosta lost consciousness during the assault. J.C. returned later that night and was not injured. Mr. Dacosta testified that at no point was the assault three on one, it was always two on one.

[10] Mr. Dacosta testified that when the black male returned after he chased J.C. he kicked J.V. in the head that may have knocked J.V. unconscious.

[11] In cross-examination, Mr. Dacosta testified that "one of the gentlemen that came out of the car threw the first punch, the one in the middle….", but missed J.V., however, the second punch struck J.V.

Justin Kirke (also known as J.C.)

[12] J.C. testified that the evening started out with a few drinks at his house with his friend J.V. before they went to Kelseys. J.V. drank rum and coke. They planned to meet up with Hailey MacArthur and Allan McIssac at Kelseys.

[13] By way of background, J.V. and J.C have known each other since they were five (5) years old. Both men played softball and baseball together when they were very young. Over the years they grew apart but recently had been in touch and decided to go out that evening to watch the Blue Jays.

[14] J.C. knew Ms. MacArthur for only a week and a half. They met on the dating application named "Tinder". They never really dated. However, Ms. MacArthur developed a friendship with J.C.'s friend Mr. McIssac. Mr. McIssac came from work to meet everyone at Kelseys in order to watch the baseball game.

[15] J.C., J.V., Ms. MacArthur and Mr. McIssac sat in a booth together at Kelsey's and watched the game. They drank pitchers of beer. In his opinion, J.C. felt by the 8th inning that J.V. was not affected by the alcohol. He testified that Ms. McArthur did not consume any alcohol and that Mr. McIssac had two beers or the equivalence of a pitcher of beer. J.C. testified that evening he was "clear minded" on the one hand, but on the other hand felt that he was not in the condition to operate a car.

[16] J.C. was seated beside Ms. MacArthur and across from J.V. Mr. McIssac was seated beside J.V. At some point in the evening J.C. became aware Ms. MacArthur was messaging a friend of hers. This person turned out to be the defendant. J.C. took the phone from Ms. MacArthur and made racial slurs towards the defendant. During the course of these communications there was an agreement that they meet. J.C. testified that he and J.V. both called the defendant a nigger. J.V. also called the defendant that evening.

[17] J.C. testified that they paid their bill and left Kelseys. When his group was outside J.C. stated that there was a car in the parking lot. He testified:

"We were urging the person to come out, right 'cause you know we've agreed to meet up. Come on out and you know talk or whatever, whatever needs to get done. Come out and meet us"

[18] J.C. knew that the defendant was in the car as Ms. MacArthur received a text message which indicated that they were in the parking lot waiting.

[19] J.C. testified that they waited in front of the Kelseys but nothing was happening. He was about to go home when suddenly another car pulled into the parking lot.

[20] J.C. testified that J.V. was "amped up", "rather excited and rather aggravated" and was not going to go back inside Kelseys. J.C. testified that J.V. did have a short temper.

[21] Two people exited the first car and a single person exited the second car. They formed a line and walked toward the group. J.C. testified that the male to his right was a short black male. The person in the middle of the line had a slender build, six (6) feet or six (6) feet three (3) inches in height and carried an extended baton. J.C. did not provide a description of the male to his left. The black male on his right hand side pointed at him and said "that's him, that's the one". At that point the middle black male chased J.C. J.C. testified that the black male with the baton flicked his wrist and the baton extended. While he was chased J.C. could hear "you're talking smack about my brother". J.C. out ran the individual. He stopped running once he reached the Georgetown Toyota location and called 911.

[22] J.C. was met by P.C. Hughes. They returned to Kelseys. He found his friend, J.V. in the rear of an ambulance. He described J.V. as "pretty beaten up, pretty bruised, pretty bloody, and you know, he looked like he just got attacked."

[23] In cross-examination, J.C. denied that he had any previous contact with the defendant over Ms. MacArthur's smart phone.

[24] J.C. admitted that he used racial slurs because he was angry and aggravated with the defendant. He felt that the defendant interfered with their enjoyment that evening.

[25] In cross-examination, J.C. freely admitted that he was a racist. He admitted that he said the following two racist slurs to the defendant:

(i) "A nigger";

(ii) "A bench can support a family, better than a black man can."

[26] In cross-examination, J.C. was unsure if J.V. threatened the defendant over the phone that he wanted to beat him up as he claimed that he was more interested in watching the Blue Jays game. J.C. denied that he made any threats to the defendant. But later in his cross-examination J.C. said J.V. may have threatened the defendant.

[27] In cross-examination, J.C. admitted that he made the racial slurs directly to the defendant over the phone. But, J.C. denied that he said to the defendant that if "we see your nigger ass around we will fuck you up and knock you out". When pressed on whether this threat was made by J.V., J.C. replied again that he did not listen to J.V.'s conversation as he just watched the Blue Jays game. He denied that he called the defendant to attend Kelsey's for a fight.

[28] In cross-examination, J.C. stated that J.V. was not a racist and was quite friendly with all different races.

[29] Finally, J.C. stated that he was contacted by J.V. a few days before he testified at this trial, about a song that was posted on snap chat, but they never spoke about the incident.

Hailey MacArthur

[30] Ms. MacArthur confirmed that she attended Kelseys and met J.V., J.C. and Mr. McIssac. She testified that she arrived alone and joined the rest of her group in a booth. She did not have anything to drink that night.

[31] Ms. MacArthur testified that she snap chatted the defendant. She described the defendant as a "pretty good" friend she has known since high school. While she snap chatted the defendant, J.C. suddenly grabbed her smart phone and contacted the defendant. Ms. MacArthur testified that J.V. was also involved in communicating with the defendant. She testified that they were "drinking too much and took my phone and were saying racial things that were uncalled for".

[32] This was not the first time that J.C. had communicated with the defendant. Apparently a few days earlier, J.C. took Ms. MacArthur's smart phone and called the defendant a "nigger" and a "bumbaclot". He repeated the same words on the evening of October 4, 2016. Ms. MacArthur testified that on the previous occasion the defendant responded to J.C. and stood up for himself. But at the same time the defendant also thought "it was funny or something".

[33] Ms. MacArthur testified that during this evening, J.C. made a particularly unkind remark about the fact that the defendant did not have a father when he was younger.

[34] Ms. MacArthur testified that near the end of the conversation J.C. and J.V. told the defendant to come to Kelsey's. She said that they both wanted to fight. Ms. MacArthur told the defendant not to come "cause like they were being stupid and they're drunk". Ms. MacArthur testified that both J.C. and J.V. were drunk. The defendant responded that he was coming to their location anyways.

[35] Ms. MacArthur testified that she also saw J.C. send a picture of himself to the defendant.

[36] Ms. MacArthur testified that when the Blue Jays game was almost over, while seated in the booth J.V. in order to get ready to fight, he took off his jewellery and gave it to Mr. McIssac.

[37] She testified that they left Kelsey's and stood outside. Ms. MacArthur testified that the defendant was outside with two other black males whom she did not know, one of which had a baton. She testified in her opinion it looked like J.V. really wanted to fight. She testified that the defendant came forward and pointed out J.C. who he recognized. At this point J.C. ran away as the black male with the baton chased him. Ms. MacArthur testified that the defendant then asked Mr. McIssac if he said anything that night. Mr. McIssac responded "no". But near the end of her examination in chief she testified that while people pulled off the defendant and the other assailant from J.V., the defendant asked Mr. McIssac if he had said anything that night.

[38] Ms. MacArthur testified that she saw J.V. on the ground in the fetal position. She witnessed the defendant and another male kicking J.V. His body was limp on the ground while he was kicked. Ms. MacArthur told them to stop. Other people stepped in to pull them off J.V. She saw that he had a bloody mouth and a lump on his head.

[39] In cross-examination, Ms. MacArthur testified that J.C. and J.V were drunk that evening. She also agreed that they were threatening to beat his "nigger ass" if they saw the defendant. She did not have a clear recollection of the exact words but those were the type of words that they used that evening.

[40] Ms. MacArthur testified that the defendant was involved in raising his three (3) year old little sister.

[41] Ms. MacArthur confirmed that J.C and J.V. invited the defendant to come to Kelsey's to fight.

[42] In cross-examination, Ms. MacArthur was uncertain as to who was the first person to have contact with J.V. after J.C. fled, as she had her back turned to the fight. She confirmed that the defendant was kicking J.V. and that she testified that someone other than the defendant used a metal bar on J.V.

Justin Vieira (also known as J.V.)

[43] J.V. testified by video-link up from a location in British Columbia pursuant to an application brought by the Crown. I rendered my decision after hearing oral argument and reviewing written submissions by both counsel.

[44] It was obvious from J.V.'s testimony that he had very little recollection of the events on October 4, 2016. I am not sure if his poor recollection had more to do to with his head injuries from the attack or his level of intoxication or his unwillingness to admit that he uttered the racist slurs.

[45] J.V. recalled that he went to Kelsey's with J.C. on October 4, 2016. They met up with Ms. MacArthur, followed by Mr. McIssac and watched the baseball game. By the end of the evening J.V. testified that he was not drunk but "borderline tipsy" and not in any shape to operate a car.

[46] J.V. testified that Ms. MacArthur was on her phone with "people" and "they" became disrespectful towards her. J.V. said that he and J.C. got on the phone and started a conflict with these "people". He testified that "they" threatened to come and stop by Kelsey's.

[47] J.V. testified that he and J.C. traded insults and threats back and forth with the other group. Notwithstanding he was seated at the same table with J.C. he could not recall what J.C. specifically said that evening. He just knew that this other group was coming to "mess them up" but he testified that this was just talk.

[48] J.V. testified that the night progressed and then he recalled going outside to have a cigarette. He saw a strange expression on J.C.'s face as two cars pulled into the parking lot. He recalled that someone said something to him from behind. The voice came from one of three males that stood there. At this moment, J.C. ran away and J.V. was struck from behind on the head. He went to the ground and was beaten. He blacked out momentarily and then regained consciousness. He felt that his watch was taken from his arm and a chain was taken from his neck. He testified when he regained consciousness he thought that he saw what he described as an 'extendo[sic] baton'. He was struck all over his body. He testified that all three men beat him. He felt that a second baton was used as well. He recalled that someone helped him up to his feet. He was placed in an ambulance and taken to Georgetown Hospital. He remained at the hospital for a few hours and released.

[49] With respect to his injuries, J.V. testified that he received the following injuries:

(i) A fractured finger on his left hand;

(ii) Cracked ribs on his left side;

(iii) A fractured cheek ligament;

(iv) Split plates in his skull;

(v) Black eyes and bruises;

[50] J.V. testified that his finger was placed in a sling for a month and a half. The finger has fully healed. With respect to the cracked ribs they have not fully healed. He currently still receives sharp pain in that area approximately once a week. The damage to his cheek still lingers as he has a dark shadow or bruising under his eye.

[51] In cross-examination, J.V. denied that he uttered any racial slurs that evening. He also denied that he took off any jewellery for a fight and gave it to somebody. He denied this fact as well to P.C. Hughes. He also testified that no one handed him any jewellery after the fight. He did have a recollection of taking off his sweater inside Kelsey's.

[52] J.V. denied that he uttered a number of slurs to the other party on the phone that were suggested to him by counsel. J.V. testified that from what he recalled from the evening was that no one was acting racist.

[53] J.V. was cross examined about a statement that he gave to P.C. Hughes while in the hospital. He did not have any recollection that he told P.C. Hughes that Ms. MacArthur put her phone on speaker phone and he heard someone make a comment of inviting Ms. MacArthur to come over for sex.

[54] He denied that he wanted to fight anyone that night. He testified that he did not hit anyone first.

[55] In re-examination, J.V. did admit that he spoke to J.C. over snap chat about a song recently. He recalled that he received his sweater in the hospital from J.C. and that he did not have any missing jewellery at the hospital. He did not recall that he received any jewellery from Ms. Simmonds after the incident. He disagreed with J.C.'s characterization that he was the fighting type.

Allan McIssac

[56] Mr. McIssac testified that he finished work the night of October 4, 2016 at approximately 9:00 pm and made his way over to Kelsey's to join Ms. MacArthur, J.C. and J.V that evening. He drank four beers but testified that he had a clear recollection of the evening. He confirmed that after he arrived and had a few drinks, J.C. took Ms. MacArthur's smart phone and started to message slurs to someone. He testified that the night before he was with Ms. MacArthur and J.C. J.C. started messaging racial slurs on Ms. MacArthur's phone as well. The night of the incident J.C. called the defendant a nigger and made a derogatory comment about the defendant's father. Ms. MacArthur told Mr. McIssac that J.C. was messaging the defendant, "Rashad". In his opinion, J.C escalated the racist slurs towards the defendant. He referred to J.V. as "drunk Justin". He heard both J.C and J.V. say to the defendant that they wanted to fight the defendant. Ms. MacArthur asked J.C. and J.V. to stop the taunting and give her back the smart phone. Mr. McIssac formed a belief that the defendant was going to come to Georgetown from Mississauga.

[57] He testified that when his group was outside of Kelseys J.V. wanted to fight. He said that J.V. was "all pumped up" and he took off his sweater and his earrings. He gave his earrings to Mr. McIssac and started to walk toward the group of black males. Mr. McIssac left the items outside of the bar door. He observed that once outside J.C. was not eager to fight.

[58] As the groups approached, Mr. McIssac testified that someone pointed out J.C. and J.C. ran away. It was at that moment the other two persons started to beat up J.V. He described that there were three were black males in the other group. Mr. McIssac estimated that the tallest assailant was approximately 6'2'', the second attacker was 5'9'', 5'10'' or 6' and the third attacker was 5'9 to 5'10'' in height. The assailant that chased after J.C. and carried a baton was the tallest. Mr. McIssac testified that the other two attackers used their "fists and knees" and "ganged up on Justin (J.V)". Before J.V. went to the ground he saw J.V. throw punches but the two attackers forced him to the ground and continued to strike him in the face. Mr. McIssac identified the defendant as one of the attackers.

[59] Mr. McIssac testified that J.V. sustained bumps and bruises all over his face and he was dizzy from the attack.

[60] At approximately 12:05 am he provided a statement to the police. During the course of his testimony Mr. McIssac refreshed his memory. He reviewed his statement. Afterward he recalled that the attacker with the baton asked his group "which one of you called my cousin a nigger?" and it was the defendant that pointed out J.C. Mr. McIssac's memory was refreshed for a second time. The Crown asked him who threw the first punch. He testified that one of the black males threw the first punch.

[61] In cross-examination, Mr. McIssac testified that J.C. was drunk as well. He agreed that J.C. or J.V or both stated to the defendant the following:

(i) "bitch ass nigger";

(ii) "fuck his nigger ass up";

(iii) "If we ever see you (we or he) is going to knock your nigger ass out."

[62] Mr. McIssac agreed with counsel's suggestion that J.V. was ready for a fight that night. Mr. McIssac did not see the baton used to physically assault J.V.

Rachad Quintyne

[63] The defendant is 22 years old and has no criminal record. He is attending Humber North College and majors in game programming but has a diploma in culinary arts.

[64] The defendant testified that he had a platonic relationship with Ms. MacArthur.

[65] The defendant testified that days before the incident, he was involved in a prior confrontation over racist text messages and insensitive remarks about his father that he received from Ms. MacArthur's smart phone, however he stated that he successfully 'de-escalated' the situation. He testified that he felt the confrontation was a joke initiated by Ms. MacArthur's brother.

[66] With respect to the evening of October 4, 2016, the defendant testified that he was at his home in Mississauga. Sometime between 7:30 pm and 8:00 pm when the defendant was settling in to go to bed he started snap chatting with Ms. MacArthur. He thanked Ms. MacArthur for setting him up with one of her girlfriends, however shortly after thanking her the defendant began to receive racist slurs. The defendant received a voice call which went into his voice mail. The voicemail contained similar threats such as:

(i) "I see you I'm going to knock you out"

(ii) "I'm gonna one-punch you"

(iii) "if I see you around Georgetown, I'm gonna fuck you up"

[67] The defendant stated that he questioned Ms. MacArthur over snap chat who was doing this. Ms. MacArthur told the defendant that it was the same "stupid persons" from the previous occasion and that they had taken her phone. The defendant testified that that he received the same "racial jokes" as before but through messaging. These individuals repeatedly called the defendant but he did not answer his phone for a period of time. Eventually the defendant did answer his phone and the voice on the other end said, "I'll come, come fight you fucking nigger. I'll fucking one punch you" and the defendant hung up. The messaging and the calls continued until the defendant "got fed up". The defendant testified that he especially felt threatened when the caller stated, "oh, if I see you in Georgetown, I'm gonna fuck your nigger ass out". According to the defendant, this threat particularly troubled the defendant as he has friends that lived in Georgetown and it was a place that he claimed that he frequented with some degree of regularity in order to skateboard. The defendant testified that he takes his three (3) year old little sister to Georgetown approximately twice a week.

[68] The upshot of all the threats made to the defendant was that he believed that there was a "target on his head" and that he had to confront the threat head on that evening.

[69] He picked up a friend at a MacDonald's in Meadowvale and drove to the parking lot near the Kelsey's in Georgetown. Another friend drove in a second car. While he sat in the car, the defendant played the threatening voice message to his friend.

[70] The defendant testified that J.C (or Big Justin he referred to him as) came out of Kelsey's and yelled the following:

(i) "you fucking nigger, get out of the car";

(ii) "pussy ass nigger";

(iii) "I'm gonna one-punch you sooner or later, you pussy ass nigger".

[71] The defendant claimed that J.C. went back inside Kelseys. It was unclear in his evidence when J.C. came back outside, however, the defendant testified that the other group came towards their cars and that was when his group decided to exit from their cars.

[72] The defendant testified that one of his friends asked "which one of you guys were talking shit to my cousin?"[2] The defendant admitted that he pointed out J.C. as he recognized him. J.C. ran away and both the defendant and his friend chased after J.C. The defendant testified that it was "too much work" so he stopped and turned around. When the defendant turned around J.V. punched one of his friends. At this moment, the defendant testified that he ran passed Ms. MacArthur, Mr. McIssac and "decked" J.V. J.V. dropped to the ground. The defendant testified that J.V. grabbed his foot and tried to pull the defendant to the ground "over and over again". The defendant broke free and said to Mr. McIssac, "Bro, are you talking shit, were you the one talking shit too?" Mr. McIssac responded that he was not involved. The defendant and his friends ran back to their cars.

[73] The defendant denied that he intentionally kicked J.V. in the ribs. He stated that J.V. was never struck with a baton.

[74] In cross-examination, the defendant testified that he just "threw off" the remarks that were directed to him the night before the incident. He testified that he is the type of person that tries to be reasonable with people and ignores these kind of taunts and slurs.

[75] The defendant changed his evidence in regards to his knowledge that it was Ms. MacArthur's brother who was messaging racial slurs to him nights earlier. He then agreed in cross-examination that he knew that it was not her brother but someone else.

[76] The defendant was reluctant to disclose to the court the identity of his associates that went with him to Georgetown to fight. Curiously, when he was confronted with his cellphone record that he had called his brother, Jamar Quintyne at 10:59 pm that evening, the defendant testified that he did not know if his brother was present during the incident.

[77] The defendant testified that he attended Georgetown to fight "cause they were bothering me and they wouldn't leave me alone". He believed that if he did not go to Georgetown to fight, J.V. and J.C., they would have gone and looked for him. However, the defendant was confronted by the Crown with his previous statement that he had given to the police the night of his arrest. The following exchange took place between Detective Price and the defendant:

Detective Price: "Okay. So what was your intention? What was your intent, what was your goal, what did you hope to achieve when you arrived at the Kelsey's in Georgetown?"

The defendant: "Like to see like why they wanted to, why they just call me up for no reason."

Detective Price: "Okay, just to have a friendly conversation with these people that just threatened you?"

The defendant: "yeah, to be- I'm not a real fighter."

[78] In cross-examination, the defendant testified that he and the other person arrived the parking lot and they were just "chilling". He agreed that they were just sitting there, in the car rather than planning to the fight. The Crown had to remind the defendant that he stated in his examination in chief that he played the voicemail that contained the racial slurs for the other person in the car.

[79] In his evidence the defendant maintained that he was there to fight. He targeted J.C. as the instigator and pointed him out because J.C. said to the defendant "come out of the car so I can one-punch you, you nigger".

[80] In his cross-examination the defendant said that he could not see a baton in his friend's hand as they ran side by side after J.C.

[81] The defendant stated that after his friend was punched by J.V. he ran fifteen (15) to twenty (20) feet and struck J.V. in the head.

[82] The defendant conceded in his cross-examination that he brought two (2) other friends to even things out as he thought that this was going to be a 3-on-3 fight that evening.

The Applicable Law

Assessment of Credibility

[83] The leading case on assessing credibility and the standard of proof is R. v. W.D., 63 CCC (3d) 397 (S.C.C.). I must apply the following test: First, if I accept the defence evidence then the defendant must be acquitted. Secondly, if I do not believe the defendant's testimony I could still be left with a reasonable doubt, and again I must acquit the defendant. Thirdly, even if the defence evidence does not raise a reasonable doubt, I have to consider all of the evidence including the evidence adduced by the Crown to satisfy myself that the Crown has met its high burden and proven beyond a reasonable doubt all of the essential elements of the offence against the defendant. This does not mean that defence evidence must be viewed in isolation. In fact, to the contrary the defence evidence is to be assessed in the context of the entire case. I must assess the evidence of the complainant, the other Crown witnesses and the defendant in light of the totality of the evidence, which includes and permits comparing and contrasting the evidence of those witnesses. See: R. v. Hull, [2006] O.J. No. 3177 (C.A), at para. 5. I am also entitled to rely on none, some or all of a witness's evidence.

[84] A non-exhaustive list of factors I can use in assessing witness's credibility include:

(i) The quality of the witness's memory (e.g. impact of alcohol/drug consumption).

(ii) The consistency or inconsistency with the testimony of other witnesses, and/ or objective evidence such as video footage.

(iii) The inconsistencies within the witness's own testimony including prior inconsistent statements.

(iv) The ability to make accurate observations at the time of the events.

(v) The inherent reasonableness or implausibility of the testimony.

Reasonable Doubt

[85] I am also mindful of the basic elements of reasonable doubt as set out in R v Lifchus (1997), 118 CCC (3d) at page 13; and R v Starr (2000), 147 CCC (3d) at page 541 from the SCC;

(i) The standard of proof beyond a reasonable doubt is inextricably intertwined with the fundamental principle of the presumption of innocence.

(ii) The burden of proof never shifts to the defendant.

(iii) A reasonable doubt is not a doubt based upon sympathy or prejudice, but rather it is based on reason and common sense.

(iv) It must be logically connected to the evidence or the absence of the evidence.

(v) It does not involve proof to an absolute certainty.

(vi) It is not proof beyond any doubt nor is it an imaginary or frivolous doubt.

(vii) More is required than proof that the defendant is probably guilty.

Assault Causing Bodily Harm

[86] The offence of assault causing bodily harm is set out in section 267 (b) of the Criminal Code of Canada as follows:

Everyone who, in committing an assault

(b) causes bodily harm to the complainant,

is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.

R.S., 1985, c. C-46, s. 267 ; 1994, c. 44, s. 17.

[87] Section 2 of the Code defines bodily harm as "any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature".

[88] An assault consists of the intentional application of force by one person to another without consent. Even a minor touching may be an assault if it is done in anger or takes place in a rude, insolent or a vengeful manner: R. v. Z. (A.) (2000), 137 O.A.C. 385 (Ont. C.A.)

[89] Counsel contended in his written submissions that the Crown failed to prove beyond a reasonable doubt an essential element of the offence, namely bodily harm. Counsel argued that the Crown failed to file or call any medical evidence to prove the injuries that J.V. allegedly suffered. Moreover, the only evidence to corroborate and support J.V. injuries came from J.V.'s testimony, and his initial statements to police. But, given his state of mind and lapse in memory, I am urged to treat the evidence with caution and skepticism.

[90] I agree with the Crown that counsel did not cross-examine or challenge J.V. or any witnesses regarding the purported injuries. The Crown contended that the medical evidence of the injuries (i.e. what the hospital staff or a doctor said to J.V.) was hearsay evidence and that counsel never objected to its admissibility. The time to object to evidence should occur when it is tendered. See: R. v. Gundy, [2008] O.J. No. 1140 (C.A.) paras. 19-24. I would go further and say that J.V.'s testimony alone regarding the injuries and the long term effects of those injuries (i.e. the sharp pain in the rib area, discoloration under his eye) were "more than transient or trifling in nature". J.V.'s testimony regarding his injuries was further corroborated by Sergio Dacosta, Jennifer Simmonds, Hailey MacArthur and Allan McIssac and was unchallenged by the defence. Finally, I note that it is settled law that medical evidence is not required to establish the existence of bodily harm. In R. v. Giroux, 1995 Carswell Alta 1082 (C.A.) Fraser, C.J.A. stated at para. 2:

It is also evident from reviewing the reasons from the trial judge that the trial judge erred in law on two points. First, he indicated that there had to be a medical report which supported the aspects of bodily harm before he was in a position as a trial judge to convict of assault causing bodily harm. In this, he is in error. Secondly, the trial judge also erred by suggesting that it was necessary in order to convict for assault causing bodily harm, that there be medical evidence indicating a prescribed course of treatment or care in respect of the injuries falling within the parameters of the charge of assault causing bodily harm. In that respect too, he also erred.

[91] There was no suggestion that any of the injuries and their effects pre-existed before the attack. Therefore, I am satisfied beyond a reasonable doubt the Crown established that J.V. suffered bodily harm.

Self Defence—Use or Threat of Force

[92] The defence has raised the issue of self-defence. The Crown has conceded in his written submissions that there is an air of reality to the defence of self defence on two basis: Firstly, the defendant's assertion that there was a threat of an ambush. Secondly, the defendant's assertion that J.V. struck the defendant's friend and, therefore, it was necessary for the defendant to run and punch J.V. in order to protect his friend. Accordingly, the Crown bears the onus to prove beyond a reasonable doubt the defendant was not acting in self defence. See: R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3 (SCC) para. 39.

Section 34 of the Criminal Code 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.

(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.

[93] In R. v. Bailey, 2016 ONCJ 766, Justice West stated at paras. 76-79 the following:

Self-defence is a justification for the use of force to resist force or threatened force. Under s. 34 the new test for self-defence was simplified into three basic requirements, applicable to all cases, see R. v. Bengy, 2015 ONCA 398, [2015] O.J. No. 2957 (C.A.) at para. 28:

A) Reasonable belief (34(1) (a)) : the accused must reasonably believe that force or threat of force is being used against him or someone else;

B) Defensive purpose (34(1) (b)): the subjective purpose for responding to the threat must be to protect oneself or others; and

C) Reasonable response (34(1) (c)) : the act committed must be objectively reasonable in the circumstances.

All three of the prerequisites must be satisfied. When the first two prerequisites are met, the success of the defence will hinge on the question of the reasonableness of the responsive act. Proportionality is an important consideration in assessing the factors listed in the third prerequisite. To inform this inquiry, s. 34(2) provides a non-exhaustive list of relative considerations. None are requirements. The relevance of any factor, enumerated or not, will be a matter for the trier of fact to determine (R. v. Bengy, supra, at para. 29).

Where an individual reasonably believes that force is being used against him or her, and "responds reasonably for the purpose of self-defence", s. 34(1) can provide a full justification for his or her actions: R. v. Ryan, 2013 SCC 3 at para. 25; R. v. Kerr, 2004 SCC 44 at para. 93.

If the Crown disproves any of these requirements, the defence fails.

Position of the Parties

[94] The position of the defence was that the defendant's evidence should be accepted and on his evidence he acted in lawful self defence when he drove to Georgetown from Mississauga to fight J.V. Specifically, he believed on reasonable grounds that force will be used against him or that the threat of force was being made against him and the force used to defend himself was and his actions taken against J.V. were reasonable in the circumstances. Furthermore, the defendant believed that he was threatened and criminally and racially harassed by J.V. and J.C. to the degree that he had to protect himself and his family against these imminent threats. The defence submitted that J.V.'s deeds that evening created the reasonable grounds for the defendant's belief. They were as follows:

(i) He threatened the defendant with physical force;

(ii) He called out the defendant for a fight;

(iii) He was the aggressor at the outset of the fight;

(iv) He provoked the fight;

(v) He communicated racial slurs and threats to harm the defendant.

[95] In the alternative, the defendant's evidence should at least raise a reasonable doubt.

[96] The Crown's position was that the defendant's evidence should be rejected and the evidence of Ms. MacArthur, Ms. Simmonds, Mr. Dacosta, J.C. and J.V. should be accepted. The Crown argued the defendant lacked credibility. He was evasive and inconsistent in his evidence. The Crown conceded that J.V. and J.C and the defendant wanted to fight that night. However, the defendant's explanation for coming to Georgetown was not to protect himself and his family from an ambush attack. The defendant brought two other people to even up the fight and start a black vs white three on three race riot. Once J.V. was chased away and Mr. McIssac was not about to get involved, the circumstances evolved into a two-on-one (maybe a three-on-one) beating of a defenseless person.

[97] The Crown suggested that I should completely reject the defendant's explanation that he witnessed J.V. without any justification or during a one-on-one consensual fight, "decked" his friend that caused his friend to drop to the ground, and his belief that he had to run and punch J.V. in the head in order to protect his friend.

Analysis

[98] I do not believe the defendant's version of the events. I found that he was not a credible witness. His evidence was externally inconsistent with independent and sober witnesses, Ms. Simmonds and Mr. Dacosta. Ms. Simmonds, Mr. Dacosta, Ms. MacArthur were credible and believable witnesses. I have no difficulty accepting their testimony. Ms. Simmonds saw two black males leaning over and hitting J.V. Mr. Dacosta saw the first punch thrown by a black male and the fight was two on one, with J.V. on the ground kicked and stomped on the head. Mr. McIssac, although not an independent witness was forthright in his testimony. He saw two black men gang up on one man. He saw a black male throw the first punch. Ms. MacArthur, the defendant's friend, saw her friend the defendant and another male kick J.V. while he laid defenseless on the ground. I felt that J.C. may have understated how much he had to drink that night. Ms. MacArthur felt that he was intoxicated but on the other hand, Mr. McIssac referred to J.V. as the drunk "Justin". J.C. was a self-admitted racist. As repugnant as J.C. may be, his admission that he was a bigot was contrary to his interest, bolstered his credibility. Candidly he admitted that the upshot of the messaging was that all the parties were going to meet up and or fight. He never stated that they told the defendant that if and when you come to Georgetown they would ambush him. J.V. testified that he was not intoxicated that evening. He had no idea who had attacked him. I cannot reconcile whether his memory deficiencies were as a result of blows to his head or due to his level of intoxication or a combination of both. J.V.'s evidence was not entirely reliable. He has no memory of stripping off his sweater for the fight, taking off his jewelry and handing items to Mr. McIssac. He has no recollection of Ms. Simmonds handing to him his ring and sweater after the attack. He was reluctant to admit that he made racist remarks to the defendant which I think undermined his credibility.

[99] The following outlines my reasons for disbelieving the defendant's evidence and why I find that the Crown has proven beyond a reasonable doubt the defence of self defence is not available to the defendant. As well, my reasons will also include why I find that this was not a consent fight.

[100] I reject the defence submission that the defendant felt threatened or there was prior animus created on the previous occasion between himself and J.C. while they were messaging. There was no evidence to support this argument. When I examined the defendant's evidence regarding the prior occasion he described the messaging as "racist jokes and slurs". Moreover, he stated that he diffused the conversation because that "this does not apply to me" and the type of comments "don't work on me". The defendant admitted that the person simply gave up since there was no reaction from the defendant. Further in his cross-examination when the Crown suggested that he was not bothered about the messages, he agreed that he just "threw it off". As well, the defendant testified that in the past he just ignored racially charged slurs or remarks. In my view, the defendant's reaction to J.C.'s jokes and slurs belie the notion that he was fearful on that previous occasion. He never testified that he was ever threatened.

[101] The defendant testified that it was when he settled in for the night, that he started to receive racially motivated threats of violence over Snapchat from Ms. MacArthur's smartphone. He testified that he ignored the threats and went to sleep, however the threats continued. He claimed that he was told that if he was seen in Georgetown he would be attacked. He formed a subjective belief that an attack was possible if he attended Georgetown, a town he claimed he often visited. Regardless of his reasons, it was clear the defendant declined to exercise other reasonable options in order to diffuse the situation. Rather, the defendant chose to resolve or eliminate the imminent attack on his own terms. That evening he formed an intent to confront his antagonists by adding two individuals to balance out the sides.

[102] The defendant's explanation for not turning off his smartphone that evening and ignore his antagonists defied common sense. He claimed that he could not turn off his phone as he needed his phone activated in order for his alarm on the phone to wake him up the next morning. He said there were no other alarms or mechanisms to wake him up in his house.

[103] The defendant's testimony regarding who he picked up or contacted to join him in Georgetown that evening was evasive, less than forthright and was tailored to avoid identifying that individual. He claimed that the person's name that he picked up in Meadowvale was "buddy". In my view he compounded this fiction by telling the court that any 'solid' person who backed him up he called "buddy" and did not know his real name. Moreover, he told the court that it was his habit to use the name "buddy" a lot. It was copiously evident that the defendant's testimony was an exercise in avoidance of telling the truth as to the true identity of the other person with the defendant in the car.

[104] A further extension of the defendant's avoidance in being truthful with the court about people's identity, regarded the testimony about his brother Jamar Quintyne. The defendant confirmed that at 10:59 pm he messaged his brother. The communication lined up with the time frame that he was getting organized to drive to Georgetown. Based on the defendant's answers and his demeanor it was reasonable to infer that the defendant named his brother as one of the other men with him that night. After lunch, the defendant's cross-examination resumed and it was obvious that the defendant realized that he had implicated his brother and attempted to recant that previous evidence.

[105] The defendant indicated in his examination in chief that after he arrived in the parking lot, he testified that he played the voicemail of racial slurs and threats of violence to the other person in the car. However, in cross-examination he testified that they were just "chillin" prior to the fight. The latter testimony was at odds and inconsistent with his evidence in chief.

[106] The defendant's assertion that he never advised the driver of the other car about the threats and racial slurs was an obvious attempt to distance himself from this person because he had a weapon. The defendant testified that no one in his car was armed with a weapon that night since there was no reason to have a weapon. However, the testimony of Ms. Simmonds, Mr. Dacosta and the defendant's own testimony revealed this untruth. I accept the evidence from the witnesses that when the person with the weapon approached he questioned the group, "which one of you guys called my cousin a nigger?" at which time the defendant pointed out J.C.

[107] The defendant testified that he and his friend chased after J.C. He claimed that he was uncertain that the other person was holding a baton as they ran after J.C. side by side. Neither Ms. MacArthur, Ms. Simmonds, nor Mr. Dacosta described a second person chase after J.C. I disbelieve the defendant's evidence that he pursued J.C. Furthermore, his claim that he could not see a weapon in the other person's hand because they ran side by side was an example of evidence of convenience and made up.

[108] The defendant stated that after he apparently broke off his chase he saw his friend get punched in the head. The defendant ran 15 or 20 feet and struck J.V. in the head with a running punch. Unfortunately, this scenario was never put to any Crown witness in cross-examination. The defendant's assertion that while J.V. was on the ground that he repeatedly grabbed the defendant's foot and the defendant pulled his foot away from J.V., in my view was made up to account for the fact that witnesses saw J.V. being kicked in the head and body.

[109] Finally, the defendant was discredited in cross-examination when it was obvious that his police statement was at odds with his testimony as to the reason why he drove to Georgetown that evening. The Defendant testified that it was to fight J.V. and J.C. as a pre-emptive measure. However, while in police custody that evening he told Detective Price that he went to Georgetown "just to have a friendly conversation....I'm not a real fighter".

[110] In the end, I found that the defendant's testimony completely lacked credibility.

[111] Although I have found on the whole the defendant's testimony not credible, I now wish to address the simplified three (3) basic requirements in order to meet the test for self-defence:

Did the defendant have a reasonable belief there was imminent danger?

[112] There is an immediacy requirement in order to assess the reasonableness of the defendant's belief. (See: Justice Watt's Standard Jury Instruction). In my view, the threat was not immediate or imminent. The defendant had other options available: (1) Avoid Georgetown. (2) Contact the police. (3) Enlist the assistance of Ms. MacArthur to diffuse the tension. I also find that the defendant was an equal participant in the trash talking by voluntarily returning messages and telephone calls rather than turning off his phone and going to sleep. I find as well that the defendant exemplified a complete lack of fear that evening. For example, after the fight had ended he pressed Mr. McIssac whether or not Mr. McIssac had threatened him over the telephone. In my opinion, the defendant was not fearful but rather the opposite. He drove to Georgetown to attack bigots and racists and along the way he picked up 'some muscle' to even out the sides. The defendant was told by Ms. MacArthur that he should ignore the silly drunk talk and do not attend Georgetown. I also find that there was no specific threat to ambush the defendant. Finally, the defendant's assertion that he ran and punched J.V. in order to rescue his friend from an imminent threat I completely reject as I have found that did not occur. In all the circumstances, I do not believe that the defendant's subjectively held belief that a threat was imminent was a reasonable belief.

Was the defendant's defensive purpose to respond to the threat in order to protect himself or others?

[113] The defendant's purpose was not for a defensive purpose to protect himself or others. But rather, I find that evening he wanted to avenge the evil and repugnant remarks made by J.V. and J.C. The defendant brought two others to make the consent fight even. The fact that someone from the defendant's group questioned who called the defendant a nigger spoke volumes as to the true purpose of the defendant's response. The defendant went to Georgetown to vindicate or defend his honour.

Was the defendant's conduct or response reasonable in the circumstances?

[114] I will now address whether the defendant's actions were reasonable in the circumstances. Applying the non-exhaustive list of factors set out in section 34(2) of the Criminal Code:

(a) The nature of the force: The fight was two-on-one. The defendant and another attacker kicked and punched J.V. in the head and body while he was prone on the ground and defenseless. J.V. suffered serious injuries.

(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: The only use of force that was imminent was more or less created by the defendant's voluntary assumption of risk by attending a consent fight. The racist remarks came from two intoxicated individuals. Ms. MacArthur confirmed to the defendant that it was just 'drunk talk' and to ignore it. In my view, the defendant could not ignore the banter and consequently the defendant brought himself to the threat rather than choosing other means to avoid it. That evening he could have stayed home, gone to the police and or stayed away from Georgetown entirely.

(c) The defendant's role in the incident: the defendant played a significant role. He was baited into a fight. Understandably the defendant was offended by the repugnant remarks from two bigots, however, he had every opportunity to 'turn the other cheek' and turn off his phone.

(d) Whether any party to the incident used or threatened the use a weapon: There was an agreement to fight or meet up that evening. I have concluded based on the testimony of Ms. Simmonds, Mr. McIssac, Ms. MacArthur and J.C. that one of the black males that accompanied the defendant brought a baton. The defendant attempted to distance himself from having any knowledge that one of his accomplices armed himself with a weapon. The weapon was wholly unwarranted and unlawful. There was no mention of using a weapon against the defendant in any threats or racist remarks.

(e) The size, age, gender, and physical capabilities of the parties to the incident: It was clear from the evidence that J.V. was heavily intoxicated. He was overcome by two people, including the defendant and beaten. There was no evidence of any size deficiency.

(f) The prior relationship of the parties: The common thread between the parties was their relationship with Ms. MacArthur. However, there was no history between the parties that warranted a full out attack on J.V.

(f.1) Prior interaction and communication between the parties: The previous communication between the defendant and J.C. involved racial slurs but no threats of violence. On the evening of the attack the communication was initiated by J.C. and J.V., however, it was drunken babble that according to Ms. MacArthur should have been ignored.

(g) The nature and proportionality of the person's response to the use or threat of force: If there was a threat, which I find that the defendant unreasonably held that belief, the defendant's response was disproportionate. By including two other individuals, one of which was armed to confront one and possibly two intoxicated antagonist was completely disproportionate to the threat of force. The conflict rapidly developed into a vicious attack on an intoxicated and defenceless male who was kicked and punched while lying on the ground in the fetal position.

(h) Whether the act committed was in response to a use or threat of force the person knew was lawful: I do not believe that this is an applicable factor for my consideration.

[115] Based on the aforementioned factors, I also do not find that the defendant's claim that he used force to defend his friend that was suddenly struck by J.V. reasonable. I have already found that the defendant deliberately told a falsehood to somehow justify J.V.'s serious head injury. However, I do accept that J.V. was a victim of a blindsided blow to the head and that the defendant was responsible for that punch as he has described it. But I disbelieve the defendant's evidence that J.V. "decked" his friend. Finally, even if I were to accept that the defendant ran over and delivered a running punch to J.V.'s head, that in and of itself was excessive or disproportionate force to the threat to his friend.

[116] As I have already stated, I do not accept the defendant's evidence as it related to self-defence. His evidence does not leave me in a state of reasonable doubt as to whether the defence was available to him. I find that the defendant was not faced with an imminent attack or in danger from attack. The defendant wanted to confront and fight that evening. He brought his accomplices to even up the sides and wanted to fight J.V., J.C. and if necessary Mr. McIssac if he was involved. I completely reject the notion that the defendant was criminally harassed to the extent that justified attacking and battering J.V.

Consent

[117] The remaining issue is whether or not J.V. consented to a fight that led to the injuries that I have already found, constituted bodily harm.

[118] Section 265(1) of the Code defines the offence of assault, its application, and the doctrine of consent. It reads the following:

265 (1) A person commits an assault when

(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;

(b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or

(c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.

Application

(2) This section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault.

Consent

(3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of

(a) the application of force to the complainant or to a person other than the complainant;

(b) threats or fear of the application of force to the complainant or to a person other than the complainant;

(c) fraud; or

(d) the exercise of authority.

Accused's belief as to consent

(4) Where an accused alleges that he believed that the complainant consented to the conduct that is the subject-matter of the charge, a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instruct the jury, when reviewing all the evidence relating to the determination of the honesty of the accused's belief, to consider the presence or absence of reasonable grounds for that belief.

R.S., c. C-34, s. 244; 1974-75-76, c. 93, s. 21; 1980-81-82-83, c. 125, s. 19.

Position of the Parties

[119] The defence and the Crown agree that J.C. and J.V consented to a fight with the defendant that evening. The defence argued that the defendant did not intend to cause and did not cause serious bodily harm to J.V.

[120] The Crown submitted that although J.C. and J.V. did consent to a fight when they communicated with the defendant over Ms. MacArthur's smartphone, the fight never developed into a consent fight. Furthermore, any consent (if it existed at the outset of the fight) was vitiated by the defendant's subjective intent to cause bodily harm and the fact that bodily harm was caused.

[121] In R v. Paice, 2005 SCC 22, [2005] 1 S.C.R. 339, the Supreme Court stated that bodily harm must be both intended and caused for consent to an assault to be vitiated.

[122] In my view, serious bodily harm was caused and the evidence that I have already outlined supported and far exceeded the legal definition of "bodily harm".

[123] Whatever consent existed from J.V. and J.C. rapidly evaporated when J.C. was chased away and the fight quickly turned into a two on one vicious beating. The evidence from Ms. MacArthur, Ms. Simmonds and Mr. Dacosta demonstrated that J.V. was no match for the defendant and the other party involved. He was easily overwhelmed by both men and brought to the ground whereby he was subjected to punches and kicks to his body and head area. On the ground, J.V. was defenceless while he laid in the fetal position while the kicks and blows rained down on him.

[124] Kicks to the head and body by a person acting alone demonstrated an intent to cause bodily harm. (See: R. v. McMaster, [1996] S.C.J. No. 31). When two assailants kick and stomp on the head of a defenseless victim there was a subjective intent for murder. (See: R. v. Biniaris, 2000 SCC 15, [2000] S.C.J. No. 16). Moreover, where the accused made a claim of consent after the victim has lost consciousness and the blows continued, the consent to a fight was vitiated. (See: R. v. Nguyen, [2016] B.C.J. No. 106 (C.A.)).

[125] Based on my assessment of the evidence as a whole, any consent that may have existed was vitiated by the defendant's subjective intent to cause bodily harm and did cause bodily harm to J.V.

Conclusion

[126] I am satisfied, given on the totality of the evidence that the Crown has proven beyond a reasonable doubt that the defendant assaulted J.V. and caused bodily harm to J.V. There will be a finding of guilt.

Released March 21, 2018

Signed: Justice Paul T. O'Marra

Footnotes

[1] Ms. Simmonds did not identify the victim of the assault as J.V. She did not identify the white male wearing the Blue Jay attire as J.C. Ms. Simmonds did not know the parties involved. However, as the Crown's case unfolded it became obvious the names of the parties involved.

[2] The defendant explained to the court that the word 'cousin' did not mean blood cousin, but was a term commonly used to describe someone close.