Court File and Parties

Ontario Court of Justice

Date: 2018-10-15

Court File No.: Brampton 17-8185

Between:

Her Majesty the Queen

— and —

Armando Bugayong

Before: Justice I. Jaffe

Heard on: September 4, 5 and 6, 2018

Reasons for Judgment released on: October 15, 2018

Counsel

P. Quilty — counsel for the Crown

K. Marynick — for the defendant Armando Bugayong

Judgment

JAFFE J.:

Introduction

[1] Normally, punching someone would constitute a criminal offence. Not so in the sport of boxing, in which landing a punch on a person is not only acceptable, it is the point of the game.

[2] The accused, Armando Bugayong, is a boxing coach and on April 27, 2017 he got into the ring with his 13-year old student Michael Setna. The two sparred for half a round, then another full round. Mr. Setna went home with a concussion, and Mr. Bugayong found himself charged with assault causing bodily harm.

[3] Mr. Setna alleges that Mr. Bugayong was not merely sparring with him on April 27, 2017 but as a means of punishment for perceived transgressions, forcefully struck Mr. Setna multiple times on the head and body and in so doing, exceeded the rules of the sport. Mr. Setna further alleges that he incurred a concussion as a direct result of the sustained assault at the hands of his boxing coach.

Legal Principles

[4] This case turns largely on findings of fact, however, it is first helpful to set out some relevant legal principles relating to allegations of assault within the sporting context. The ropes that surround a boxing ring do not block the reach of criminal law. While boxers consent to being hit – impliedly and/or expressly if they have signed waivers – this does not provide carte blanche to their opponents. In determining whether physical contact within a sporting event constitutes criminal conduct, the two key questions will usually be:

i) What degree of force was used by the accused? and

ii) Did it exceed the other person's implied consent?

[5] The scope of implied consent is informed by the nature of the sport in question, and by reference to objective criteria: R. v. Leclerc (1991), 67 C.C.C. (3d) 563, (Ont. C.A.), at paras. 20 and 21; R. v. Cey (1989), 48 C.C.C. (3d) 480 at p. 490. In R. v. C.C., 2009 ONCJ 249, 67 C.R. (6th) 183, at para. 8, Duncan J. explained consent in the sporting context as follows:

Physical force in contact sports is usually not criminal because the participants impliedly consent to it by their participation in the game. Such consent will be implied for contact and force that comes within the rules of the game. Consent will also be implied with respect to force that is outside the rules but within the scope of the accepted standards by which the game is played: R. v. Cey (1989), 48 C.C.C. (3d) 480 (Sask CA); R. v. Leclerc, [1991] O.J. No. 1533 (ONT CA).

[6] Whether the rules of the game permit contact is an important factor to consider in determining the scope of implied consent, but the inquiry does not end there: Leclerc, at para. 22. In Cey, at p.491, Gerwing J.A., writing for the Saskatchewan Court of Appeal set out the following non-exhaustive list of other factors a trier of fact should consider when determining whether or not an act falls outside the scope of implied consent:

The conditions under which the game in question is played, the nature of the act which forms the subject-matter of the charge, the extent of the force employed, the degree of risk of injury, and the probabilities of serious harm are, of course, all matters of fact to be determined with reference to the whole of the circumstances. In large part, they form the ingredients which ought to be looked to in determining whether in all of the circumstances the ambit of the consent at issue in any given case was exceeded.

[7] The actus reus in this case requires the Crown to establish beyond a reasonable doubt that Mr. Bugayong applied force to Michael Setna which exceeded Michael's implied consent. The mens rea requires the Crown to prove that Mr. Bugayong did so deliberately: Leclerc, at para. 8. While the mens rea of assault does not require proof of an intention to do harm or cause injury, a finding that such an intention existed could assist the Court in determining whether the conduct exceeded the scope of implied consent: Leclerc, at para. 25.

Summary of the Evidence

[8] Eight witnesses testified at trial, five for the Crown and three for the defence. Of these eight witnesses, six purported to witness what happened in or around the boxing ring during the time of the alleged offence, and through those six witnesses, the Court obtained six different, and at times conflicting, accounts of what occurred.[1]

Michael Setna

[9] Michael Setna was 13 years old when he persuaded his parents to let him take boxing lessons. On February 11, 2017, Michael joined the Martial Arts Fitness Academy (MAFA) on Dundas Street in Mississauga and his father Jerry Setna signed both a membership agreement and a waiver.[2] Michael explained that he took some time out of lessons in March to catch up on school work and when he returned to the boxing gym in April, his coach Armando (Mr. Bugayong) seemed upset at him.

[10] On Thursday, April 27, 2017 Mr. Bugayong paired Michael with fellow student Pieter Gjoni and told Michael "not to go hard on him" during their sparring match. Michael jabbed Pieter in the nose causing Pieter's nose to bleed. Michael explained that Mr. Bugayong got angry, jumped in the ring, said "this is your punishment" and went "full on" on Michael as though Michael was his "opponent".

[11] Michael testified that Mr. Bugayong gave him a "liver shot" and kept punching him in the head. While Michael could not recall exactly how many punches he received, he said it was "more than ten". He explained that his coach hit him in the jaw, and both the side and back of his head. Michael explained that he tried to get out of the ring but he was not able to. During this round, Michael did not throw a punch, and instead kept his hands up in an attempt to defend himself.

[12] Michael explained that when the bell rang three minutes later signalling the end of the round, he could barely spell his own name. In his words he was "knocked out". Michael said someone helped him out of the ring as he was feeling dizzy and was "not functioning properly". Michael threw his head gear and gloves onto the floor which angered Mr. Bugayong because the boxing gear belonged to the school, not Michael.

[13] Looking at him with "attitude", Mr. Bugayong then told him to go and skip. Michael explained that he skipped for "like a minute" and needed to take break because his head hurt. In cross-examination, Michael explained that while he was skipping, Pieter, the boy with whom he had been sparring and who sustained the bloody nose, was skipping next to him. It was during this time, that Pieter apparently told Michael that he (Pieter) had a sensitive nose that bled easily.

[14] Mr. Bugayong then called him back into the ring for a second round. The second round was no better. Mr. Bugayong continued to hit hard for the entire 3-minute round, striking Michael's stomach and head "really hard". This round, however, Michael said he managed to throw some punches of his own.

[15] Michael testified that during the second round, Mr. Bugayong punched him in the jaw and that this caused Michael to "tip over". Michael did not actually fall down to the ground but held on to ropes. While he was holding onto the ropes, Mr. Bugayong kept punching him on the head and body.

[16] Michael testified that he felt Mr. Bugayong was angry when he jumped into the ring. Angry that Michael had missed lessons and angry that Michael had sparred harder with Pieter than he was instructed to do. Michael felt that Mr. Bugayong was taking his anger out on him as punishment and described Mr. Bugayong as yelling and swearing. Michael had never seen Mr. Bugayong spar with a young student before and had only ever seen his coach use mitts to catch and guide his students' punches.

[17] By the end of that second round, it was time to go home. Michael packed up his things and caught a ride home with his friend Colby Ryan, whose mother gave the boys a drive. Once at his home, Michael said he "passed out" on the couch. After two or three minutes, his stomach hurting from being punched, Michael made it to the bathroom where he threw up. Shortly thereafter, his mother took him to the hospital where he was diagnosed with a "mild concussion".[3]

[18] Two days later, on Saturday, Michael and his parents attended the boxing gym to confront Mr. Bugayong. Mr. Bugayong insisted that he had simply sparred with Michael and as he and his parents were leaving, Mr. Bugayong gave them the "finger".

[19] In cross-examination, Michael agreed that leading up to the April 27th incident, he had been sparring once a week. However, later in cross-examination, Michael explained that April 27th was the first time he has ever sparred at the gym. Michael agreed with defence counsel's suggestion that if it was his first time, he would have no idea what it felt like to spar. It was then suggested to Michael that what he experienced with his coach in the ring was "normal". Michael replied that what he experienced with Pieter (the other student) was normal in contrast to what he experienced with Mr. Bugayong.

[20] Michael agreed that while at the boxing gym during and after the incident, he tried to act as though nothing was wrong. He was motivated to stay in boxing and he did not want to make a big deal out of the situation. He tried to hide his pain from everyone, including Mr. Bugayong.

Colby Ryan

[21] Michael's friend Colby was dropped off at the boxing gym by his mother at approximately 7 p.m. on April 27th, so that he could check it out and decide if we too was going to take boxing lessons. When he arrived, Michael was skipping. Colby agreed with defence counsel's suggestion that Michael was skipping for about 5 to 10 minutes but added that Michael would stop to catch his breath. Colby testified that he saw a boy skipping with Michael who he later found out was the boy that received the bloody nose (i.e. Pieter).

[22] Colby said that after Michael stopped skipping, he observed Michael and his coach spar. According to Colby, the sparring appeared "normal" at first, but that Mr. Bugayong began "going really hard on Michael." Colby testified that he saw Mr. Bugayong hit Michael once in the face leaving Michael "kind of stunned", and saw him go around Michael and strike him in the back of his head. Colby explained that during the time Mr. Bugayong was punching, Michael was protecting himself with his hands up. Colby never saw Michael fall into the ropes or hold onto the ropes.

[23] Colby testified that immediately after the round, Michael appeared fine but he recalled that while waiting for the elevator, Michael was holding his head against the elevator wall and holding his face. While waiting for Colby's mother to drive up, Michael had to sit on the couch.

[24] Colby had never seen Michael spar before that day but he admitted to defence counsel that he saw Michael fight at school at the start of the school year.

[25] Colby's mother, Cynthia Ryan, testified that she drove Michael home from the boxing gym. Ms. Ryan recalled that Michael seemed "a little upset" though she noticed no injuries on Michael nor did she notice any slurred speech or unsteadiness.

Pieter Gjoni

[26] Pieter Gjoni was the 14-year old sparring partner that Michael sparred with for half a round before a bloody nose caused Pieter to leave the ring. Pieter recalled sparring with Michael on April 27th and explained that they were both punching each other. Pieter recalled that he jabbed Michael twice in the head, and once in the body. He also recalled that Michael punched him in the face "a couple of times" which caused his nose to bleed. His coach, Mr. Bugayong, told him to get out of the ring to clean up his nose, and Mr. Bugayong jumped into the ring to the finish the round with Michael.

[27] Pieter explained that he never hit Michael in the back of the head and as such hits are not allowed. Pieter said that their coach would instruct them not to hit hard during sparring sessions and that their normal rounds were two minutes in duration. He recalled that he had been in the ring about one minute, when his bleeding nose caused him to leave.

[28] Once he was out of the ring, Pieter concentrated on cleaning his nose and paid no attention to what was going on in the ring between Michael and Mr. Bugayong. He did however see Michael being reprimanded by Mr. Bugayong for having thrown the school's boxing gear to the ground. Pieter recounted how Mr. Bugayong called Michael back into the ring for another round. Pieter was skipping during the second round and paid no attention to what was happening in the ring. Pieter does not remember speaking with Michael while the two were skipping, and recalled that Michael was instead talking with his friend.

[29] Pieter had sparred with Mr. Bugayong in the past a couple of times and described how Mr. Bugayong would usually move around his students and never actually punched them.

Angela Thomai

[30] Angela Thomai was another 13 year-old boxing student who was at the gym the day that Michael sparred with their coach. Angela recounted how Michael and Pieter (a friend of Angela's), sparred for about a minute when Pieter's nose began to bleed. All rounds were two minutes in length and when Pieter left the ring to tend to his nose, Angela saw their coach, Mr. Bugayong, jump into the ring to finish the round. Angela described how Mr. Bugayong did "simple punches" that "weren't hard at all". Angela explained in her police interview that she was at the side of the ring skipping but she was still able to see Michael's sparring session. According to Angela, Mr. Bugayong never hit Michael in the head and was never behind Michael. Asked if she had a clear view of the ring, Angela replied "somewhat sort of."

[31] Angela recalled that Michael seemed mad when he and their coach finished the round about a minute later and she observed Michael throw his gear onto the floor. She heard Mr. Bugayong reprimand Michael for being disrespectful with the equipment and recalled that Michael then sat on the bench. Angela was a hundred percent positive that Michael did not go back into the ring to spar with Mr. Bugayong a second time. She did however claim to have seen Michael leave the gym after the class, and to her he appeared "fine".

[32] In her police interview, Angela explained that their coach, Mr. Bugayong routinely fights with students at the gym and "goes through the movements to see if you're fighting properly."

[33] Angela testified that she first learned of the alleged assault from Michael's Instagram post and that with the exception of her mother, she has not spoken to anyone about the allegations. It became clear in cross-examination however, that Angela had in fact spoken to Pieter about the allegations, though she was "a hundred percent sure" that she has not spoken to anyone else about it.

[34] Asked in cross-examination what is involved in sparring, Angela replied they do not do "full boxing because someone will probably get hurt". While they do "throw punches" they do so lightly. Asked what her relationship was with her coach, Angela replied "we are close. He's helped me with training, and we've helped him with whatever."

Stjephen Matasic

[35] Stjephen Matasic is a 26-year old electrician who has now been a member of the MAFA for two years, and who was at the ringside watching Michael Setna spar Mr. Bugayong. Mr. Matasic recalled that having been given clear instructions not to hit Pieter in the head, Michael did the "complete opposite" causing Pieter's nose to bleed. Their coach got into the ring once Pieter left, and finished the round. Mr. Matasic testified that Mr. Bugayong jabbed Michael in the head "a couple of times", but that the jabs were nothing out of the ordinary. He never saw Michael stumble.

[36] Mr. Matasic recalled that Michael and Mr. Bugayong only sparred the one time. It was near the end of class, and it was the second half of the round which started with Pieter. Mr. Matasic did not see Michael throw down his gear, skip, or appear angry.

Ernest John Jiminez

[37] Ernest Jiminez is a 29-year old analyst with Cancer Care Ontario who has been a member of MAFA for almost three years. He too was at ringside during the alleged incident. To his recollection, Mr. Bugayong and Michael Setna only sparred one round and he observed "nothing unusual" about their sparring. Mr. Jiminez also observed Michael spar with another student during a separate round. He did not recall who the other student was and only remembered that they were both inexperienced boxers. Mr. Jiminez does not recall seeing the other student receive a bloody nose, nor did he observe Michael throw down his gear.

[38] To Mr. Jiminez the night of April 27th was just like any other night. Nothing unusual happened, though he can remember with clarity that during their sparring, Mr. Bugayong did not hit Michael hard. It was about two days later that Mr. Bugayong told Mr. Jiminez about Michael's allegations.

A Diagnosed Concussion

[39] Michael's mother, Synida Setna, testified that on the evening of April 27th when Michael returned home from the boxing gym, he did not seem himself. He walked in to the living as though he was drunk, sat on the couch and complained that his head hurt. When he got up from the couch he started to vomit and Ms. Setna told him to sit down again. Michael's parents decided to take him to the hospital and he was diagnosed with a concussion at Credit Valley Hospital. A follow up appointment with family physician, Dr. Falta, confirmed the diagnosis of "mild concussion".

[40] Michael attended the Paediatric Neurology Clinic on June 6, 2017 at which Michael reported to Dr. Aziz that his headaches occurred daily though they were steadily decreasing in severity. According to Dr. Aziz's report, Michael also reported that two weeks after the April 27th alleged incident (i.e. mid-May), he was involved in a physical altercation during which he got struck in the head a few times. There was an apparent increase in all of his symptoms as a result of that second incident. In cross-examination, Michael at first denied that he had been involved in a subsequent physical fight and he denied reporting such a fight to Dr. Aziz. Michael quickly followed up by saying he did not remember any such fight, however, he steadfastly denied that he got struck in the head by another teenager.

[41] I am of the view that a concussion would constitute 'bodily harm'. By definition, a concussion is a brain injury and though I assume concussions can vary in terms of severity and symptomology, even a mild concussion is neither trivial nor transitory, and accordingly would meet the definition of bodily harm in s. 2 of the Criminal Code.

An Express Waiver Signed

[42] On February 11, 2017, the day Michael officially joined MAFA, Michael's father Jerry Setna completed a "Release and Waiver of Liability and Indemnity Agreement". The waiver alerted Michael and his father to the fact that martial arts training will involve physical contact "by kicks, strikes or grabs" on "the chest, buttocks, groin or any part of the body". Under the heading "Assumption of Responsibility and Risk", the Setnas were alerted to the possibility of physical injury ranging from minor to potentially fatal.

The Arguments

[43] Counsel for Mr. Bugayong argued that this case cried out for expert evidence concerning the rules that govern boxing and sparring. In the absence of this evidence, the Court is left with an inability to properly place the impugned conduct on either side of the implied consent boundary. The onus being on the Crown to prove the absence of consent, the Court's inability to determine whether Mr. Bugayong's conduct was in compliance with the rules, is fatal to its case.

[44] In a similar vein, defence counsel argued that in the absence of expert medical evidence on the topic of concussions, this Court cannot infer anything about the amount of force used by Mr. Bugayong from the mere fact that Michael received a concussion.

[45] Quite apart from the lack of what defence counsel argued was crucial expert evidence, it was also argued that the evidence of the Crown's witnesses was unreliable. For instance Michael's refusal to admit having reported a subsequent physical fight to Dr. Aziz undermines his credibility and should cause me to doubt his account. As well, the outstanding civil suit against MAFA and Mr. Bugayong by which Michael Setna is claiming damages in the amount of 1.5 million dollars, provides a motive for Michael to embellish, if not fabricate, his evidence.[4]

[46] The Crown counters that Michael Setna was a credible witness whose evidence was corroborated by Colby Ryan. The Crown urges me to carefully examine the evidence of all witnesses whose evidence is not so much in conflict but rather provide snapshots of the same event from different perspectives.

The Court's Analysis

[47] Exculpatory evidence was elicited from the three defence witnesses, all three of whom testified that they never saw Mr. Bugayong hit Michael hard during their sparring. If I believe their evidence, I must acquit. Even if I do not believe the exculpatory evidence, but it nonetheless leaves me in a reasonable doubt, I must acquit. And lastly, even if the exculpatory evidence is neither believed nor raises a doubt, I must nevertheless ask whether based on the evidence I do accept, the Crown has proven the assault beyond a reasonable doubt: R. v. W.D., [1991] 1 SCR 742. Moreover, I must also be satisfied beyond a reasonable doubt that the concussion amounts to bodily harm and was caused by the assault.

[48] I did not find the evidence of the defence witnesses particularly reliable. According to the three witnesses, Michael only sparred with Mr. Bugayong once, and their recollection of what occurred in the ring differed. For instance, according to Angela, the two sparred only once after Michael's first partner received a bloody nose. She was certain that Mr. Bugayong never punched Michael in the head, whereas Stjephen Matasic who testified about having seen the same round (the one in which Pieter got a bloody nose), recalled that Mr. Bugayong jabbed Michael in the head a couple of times. Mr. Jiminez also claimed to have seen only one round of sparring between Michael and Mr. Bugayong, and while he claimed to have seen Michael sparring with another student, he did not notice that the other student left the ring with a bloody nose.

[49] All three defence witnesses testified with certainty that Mr. Bugayong did not hit Michael, or if he did, it was not hard. But it seems clear to me that none of them witnessed the entirety of the interaction between Michael and his coach. Their evidence is therefore of limited value in terms of assessing what exactly occurred.

[50] Additionally, over a year later, each defence witness recounted with clarity details of a sparring round which, according them, was entirely unremarkable. This makes me wonder whether their recollection was influenced by their loyalty to their coach and their own assumptions about what did, or did not, occur.

[51] The Crown's case is not without its frailties. I agree with defence counsel that reference in Dr. Aziz's letter to a subsequent fight and head injury was not likely an error. Michael's refusal to acknowledge having reported the fight to Dr. Aziz, let alone admit the fight itself, suggests he may have tailored his evidenced to cast himself in the most favourable light.

[52] Michael's evidence is also inconsistent with the evidence of other Crown witnesses. For instance, Michael recounted that while skipping with Pieter in between sparring rounds, Pieter explained to Michael that he had a sensitive nose. However, Pieter had no recollection of speaking with Michael while skipping, and in fact recalled that Michael was speaking with his friend.

[53] Another inconsistency is found between the evidence of Michael and Ryan Colby. While Michael testified that he held on to the ropes to keep himself from falling, Colby was clear that this never occurred.

[54] As for the outstanding civil suit, while the prospect of financial award could in some instances motivate the fabrication of criminal allegations, the unchallenged evidence in this case was that Michael's parents never disclosed to Michael their law suit against Mr. Bugayong. Michael was never asked about the law suit and in fairness, I cannot find that he was motivated to accuse his coach for financial gain.

[55] In many assault cases in the sporting context, the trial courts were concerned with physical contact between competitors. In this case however, I am not examining the contact between two equally matched opponents but rather the contact between an experienced boxing coach and his much younger, neophyte student.

[56] There is no doubt that evidence concerning the rules of boxing, and specifically sparring, would have been useful to this Court. As it is, aside from the somewhat inconsistent evidence of Mr. Bugayong's students, I do not know what is, or is not, permitted in sparring. For instance, is contact permitted? And if so, is contact with a sparring partner's head permitted? And if so, what force is permitted?

[57] However, despite the lack of evidence concerning the rules of the sport, I would have little difficulty finding that Mr. Bugayong's conduct exceeded Michael's implied consent if, as means of punishment, Mr. Bugayong engaged in a sustained punching match exactly as described by Michael. In other words, I would find Mr. Bugayong guilty of assault if I was convinced that in meting out punishment, Mr. Bugayong repeatedly landed hard blows to Michael's body, face and back of the head, while his young and inexperienced student assumed a defensive stance.

[58] Though a boxing student impliedly consents to contact that would ordinarily be characterized as assaultive outside the boxing ring, contact of that nature could not be seen as being reasonably incidental to the normal playing of the sport at the novice level: Leclerc, at paras. 13 and 25.

[59] In the end I have no doubt that Mr. Bugayong got into the ring and based on the evidence I accept, I find Mr. Bugayong was not pleased with Michael, perhaps even mad. It was in that context that Michael found himself at the receiving end of Mr. Bugayong punches. I also have no doubt that Mr. Bugayong landed punches to Michael's body and head, though without the benefit of any rules of this sport and in light of the express terms of the waiver signed by Michael's father, I cannot conclude that merely making contact with Michael's head exceeded his implied consent.

[60] I find as a fact that while sparring, Michael sustained a concussion, likely at the hands of his coach. However, the mere fact that Michael sustained a concussion does not assist me in determining whether Mr. Bugayong struck with excessive force. There is no evidence concerning how much force is required to cause a concussion. Moreover, I accept Pieter's evidence that during their short time sparring, he hit Michael more than once in the head. It is possible therefore, that Pieter's strikes caused, or contributed, to Michael's concussion.

[61] A finding that Mr. Bugayong kicked-off his sparring with Michael by telling him "this is your punishment", could lead to an inference that what followed exceeded Michael's implied consent. However, no one but Michael claimed to have heard this comment. Though individual pieces of evidence are not subject to the standard of proof beyond a reasonable doubt, given the importance of this alleged statement to the Crown's proof of the charge, I feel I must be convinced that the statement was made. I am not.

[62] To be clear, I am not branding Michael a dishonest witness. These events occurred over a year ago and there is no doubt Michael sustained some injury to his brain. It would not be surprising if the passage of time and the concussion affected his memory. While it is possible Mr. Bugayong uttered those words, it is also possible Michael merely perceived Mr. Bugayong actions as punishment for having thrown down his gear, and perhaps for having given Pieter a bloody nose.

[63] Ultimately, the Crown's case rests almost entirely on the evidence of Michael and Colby, one of whom was an inexperienced boxing student, the other had yet to take a lesson. Neither of them had sparred before. In other words, they may have lacked the experiential context within which to accurately assess whether someone was "playing by the rules". Boxing is not a gentle sport. To an outsider such as Colby, the activities of two sparring boxers may appear rough, perhaps even more so to the novice boxer who is at the receiving end of his partner's jabs.

[64] Mr. Bugayong hit Michael, probably multiple times, perhaps he even hit him with some force which resulted in Michael's concussion. But on the evidence before me I cannot conclude that Mr. Bugayong's actions constituted a criminal assault. I find Mr. Bugayong not guilty.

Disposition

Released: October 15, 2018

Justice I. Jaffe

Footnotes

[1] Four witnesses, Michael Setna, Pieter Gjoni, Colby Ryan and Angela Thomai, were each under 18 years of age and had each provided prior video-taped statements to the police. Each witness adopted their prior statements and the statements were admitted on consent pursuant to s.715.1 of the Code.

[2] Both the MAFA membership agreement and the waiver were entered as exhibits.

[3] Michael Setna's medical records were admitted on consent.

[4] The Statement of Claim dated February 20, 2018, was tendered as an exhibit after having been identified by Michael's mother, Synida Setna.