WARNING

The court hearing this matter directs that the following notice be attached to the file:

This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:

110. IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

111. IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

129. NO SUBSEQUENT DISCLOSURE — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:

138. OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

Date: 2019-04-23

Court File No.: Central East Region: Oshawa Court 18-Y26011

Between:

Her Majesty the Queen

— AND —

L.D., F.L. & C.P.

Before: Justice Peter C. West

Heard on: March 25-28, 2019 & April 1, 2019

Reasons for Judgment released on: April 23, 2019

Counsel

Mr. F. Stephens — counsel for the Crown

Mr. K. Mitchell-Gill — counsel for the accused L.D.

Mr. F. Davoudi — counsel for the accused F.L.

Mr. D. Barrison — counsel for the accused C.P.

WEST J.:

Introduction

[1] All three young persons are charged with assault bodily harm in respect of MG and LD is charged with assaulting MG with a weapon; assaulting ZG; and assaulting XG with a weapon.

[2] The Crown called 5 witnesses: AM, who videotaped a portion of the events on a cell phone; XG, age 17 at time of the incident; MG, father of XG and ZG; ZG, age 13 at time of the incident; and NG, mother of XG and ZG. Mr. Mitchell-Gill called his client's brother, JD, who was present during the altercation. No other defence evidence was called.

[3] This case involves the legal principles of (1) self-defence, s. 34 of Criminal Code of Canada; (2) party liability; s. 21 of the Criminal Code of Canada; (3) consent fight and (4) the actus reus and mens rea of assault together with the issue of whether the assault caused the bodily harm inflicted. The defence conceded the injuries (17 staples to his scalp, 7 stitches to his forehead and significant bruising to his torso) suffered by MG amounted to bodily harm.

[4] As in any criminal case, the defendant young persons are presumed innocent until proven guilty. I have reminded myself that I need not firmly believe or disbelieve any witness and that I can accept all, some or none of a witness' testimony. I have also reminded myself that the Crown must prove the essential elements of the offence beyond a reasonable doubt, as this term has been defined and explained by the Supreme Court of Canada in R. v. W.(D.) (1991), 63 C.C.C. (3d) 397 (S.C.C.), R. v. Lifchus (1997), 118 C.C.C. (3d) 1 (S.C.C.) and R. v. Starr (2000), 2000 SCC 40, 147 C.C.C. (3d) 449 (S.C.C.). Proof of a probability of guilt does not amount to proof of guilt beyond a reasonable doubt. Proof of guilt to a near certainty is required in criminal proceedings.

[5] Although none of the defendants testified during the trial, as is their right, the principles enunciated in R. v. W.(D.) (1991), 63 C.C.C. (3d) 397 (S.C.C.) apply to my assessment of the whole of the evidence.

[6] I have reminded myself that circumstantial evidence may or may not prove a fact from which an inference may be drawn, that is, a factual conclusion that logically and reasonably flows or may be drawn from that evidence. However, I have also reminded myself that the only inferences that may be drawn are those based solely on the evidence in this case, and that they may and must not be based on conjecture or speculation. It is speculative to draw an inference when there is no direct or indirect factual or evidential basis to support it. However, it is the cumulative effect of all of the evidence that must meet the standard of proof beyond a reasonable doubt, not each individual item of evidence.

Findings of Fact

[7] On February 1, 2018, XG and LD were exchanging text messages over a disagreement as to an allegation that XG's mother NG was involved in a sexual relationship with CP, who was under the age of 16. The text messages were not entered by either party during the course of the trial. XG testified that the messages from LD were upsetting and eventually he and LD agreed to a consent fight with each other. The other G. family members were aware of the text messages between LD and XG, although the extent of their knowledge varied. JD, LD's brother, testified he knew of the text messages and that LD and XG had agreed to fight each other. XG lived at […name of street…] in Oshawa with his parents and sister and LD and JD lived next door at […name of street…] with their mother. The two houses share a front yard and each property shares their driveway with their other neighbour on the opposite side.

[8] Prior to February 1, 2018, XG was good friends for many years with LD and JD, who often spent time in the G. home and had gone on vacation with the G. family.

[9] ZG and NG both testified they left the G. residence, with a friend of ZG's, R., to get their fingernails done. They both described seeing LD in the second floor front window of the D. house, giving them the finger and making comments through the open window. Both ZG and NG testified they gave the finger back to LD. JD described a slightly different interaction, namely, only ZG and NG gave LD the finger and LD opened his window aggressively and told NG to grow up. His brother then texted XG and told him his mother should grow up. In my view this interaction may have increased tempers on both sides of this difference of opinions, however, it does not in any way justify or excuse what ultimately occurred in the physical altercation that occurred on the lawn between the two houses.

[10] At some point in the early evening after ZG, her mother and R. had returned to the G. residence, five or six youth were observed walking down […name of street…] in a group, towards the D. and G. residences. What occurred immediately after this group of young men arrived at the D. residence is in dispute. XG and NG testified they exited their house after MG, who was followed by ZG, had exited the house. JD, who is charged as an adult and was called by Mr. Mitchell-Gill as a witness on behalf of LD, his brother, testified the entire G. family were outside on their property facing off with the five young men, who were standing on the D. property by the bottom step leading to the front door. JD testified that everyone who was outside were yelling at each other. MG, who testified he exited the G. house first, said he did not say anything to anybody and as he walked towards LD to speak to him he was struck from behind.

[11] The only significant area of dispute between the G. family members' evidence and JD's evidence was who started the altercation. JD testified his brother LD said to MG, "At least my wife ain't fucking a 15 year old." MG then said, "E-F-F this," jumped over a low shrub between the yards and punched LD in the face. MG testified he went outside when he became aware six young men were walking down the street towards his house. He was aware of the texts between XG and LD and he wanted to speak with LD, who he knew quite well, to find out what was going on. He described putting on his boots and coat and exiting his house with his glasses on, which were ultimately knocked off and broken during the physical altercation where he was quite seriously injured. MG testified he was struck from behind and fell into LD, who was directly in front of him. He was pushed to the ground and then beaten by punches, stomping and kicks from everywhere. He did not see who was assaulting him but he was repeatedly struck by fists, kicks and being stomped upon. He recalled hearing someone yell, "Kill him." He denied punching LD at the beginning of the altercation as he was struck from behind and did not punch anyone.

[12] The defence asked MG about whether he had been drinking the night of the altercation and he denied any consumption of alcohol. The defence made reference to a triage nurse's note, "had been drinking," however, the medical report was never filed, the author of the note was not called as a witness and in my view this cross examination led nowhere and was of no assistance in my assessment of credibility.

[13] ZG testified when she got outside her house she observed her father being pushed and punched by the D. porch, which from the photograph, Exhibit 5, is very close to the porch and front door at the front of the G. house. She did not see how the altercation had started, as her father was already being struck by fists. ZG testified she went to her father's aid and was attempting to pull some of the boys off of him. Her father was being hit with candles (a glass candle holder), bottles, a knife and rocks. When she trying to help her father she was struck in the face by LD twice and a third time by someone she did not know. This unknown person was the one holding a bottle. She described her brother also attempting to help their father and she saw both XG and her mother being knocked to the ground. She observed the six young men surround her father and saw them stomping and kicking him. She heard CP yell, "Stomp on his balls" and "Kill him." When it was over FL and two others left the scene and LD, CP and JD went into the D. house. She found an open folding knife she believed was a switchblade, which she gave to the police, Exhibit 7.

[14] ZG watched the video, Exhibit 1, which was taken with a cell phone by AM, XG's friend, who was present at the house when the altercation broke out. She pointed out, at one point in the video, her father was trying to get up off the ground as he was being kicked and stomped. At the 50 second mark, she heard the sound of the unknown person smashing the vodka bottle against the D. house and then pointing it at her and her mother. ZG testified in-chief that she saw LD, CP, JD, FL, BM and all of these individuals around her father, who was in the middle on the ground, and they were beating, punching, pushing, kicking and stomping him. In cross-examination, ZG agreed in her statement to the police that she only identified LD, JD and CP as being involved in the assault on her father when he was on the ground and she did not mention any other individual's name.

[15] In cross-examination ZG's memory was refreshed from her statement where she heard someone outside, before the physical altercation began, yell out "come outside pussies." She remained firm she saw six people around her father, striking him and she recognized them by their clothes, their voices and the portions of their faces that were visible. She identified LD as the person who punched her as a result of seeing the grey sleeve of his jacket connected to the fist that struck her in the face. She admitted going to the D. door and CP, LD and JD slammed the door hard in her face. She admitted picking up a shovel and striking the door, such that the shovel broke. She also confirmed her mother had a shovel. She agreed she only identified in her police statement, CP, JD and LD and when asked if she recognized anyone else she said she did not. During the trial she identified FL as one of the individuals beating up her father. When ZG watched the video, Exhibit 1, during her preparation meeting she identified herself pulling someone off her father and referred to him as the "dude" she pulled off her father. At trial she testified this was FL.

[16] ZG agreed she left out any reference to CP coming out of the D. house with a frying pan in her police statement. She also agreed she did not like CP, who she dated for about a year.

[17] XG testified he got outside his house after the altercation had started. This in my view is confirmed by AM, who was videotaping the altercation with XG's cell phone. It is clear AM missed the start of the altercation. AM confirmed in cross examination there were nasty and upsetting texts being sent to XG by LD, which she saw and read. She also confirmed the agreement between XG and LD to have a fight with each other – one on one. XG testified he recognized LD by his stature as he was walking down the street. It should be noted of the three young persons before the court, LD is the tallest and by a considerable height. XG also testified he overheard and recognized CP's voice yelling, "Stomp his head in," and "Kill him, kill him." XG testified when he got outside his father was already being assaulted on the ground and yelling for help. His father was being kicked and stomped on by all six young men. He believed his father was probably kicked and stomped 25-35 times. When he went to help his father XG testified he was struck by LD and CP. He received a black eye. This injury is corroborated by Exhibits 3A and 3B, photographs of his right eye. He testified he was struck by a rock thrown by LD. It would appear from Exhibit 1 that a rock was thrown in XG's direction. On the video one can hear the rock hit the ground, XG can be seen picking the rock up and holding it in front of the camera. The rock is Exhibit 4. XG also testified he saw LD punch his sister. XG did not say in his police statement that LD hit him with a rock.

[18] There were inconsistencies in XG's evidence respecting what he initially told PC Kelly, who spoke to XG and his father briefly in the back of the ambulance, they both told PC Kelly they did not know who had caused the injuries to MG. Further, in XG's statement to the police he said he initially did not recognize anyone as they were all masked and it was not until he started pulling off the masks that he was able to recognize LD, CP and FL. XG was also confronted with his statement to the Crown during his preparation meeting where he indicated he overheard CP yell, "Stomp his head in," but did not know who said, "Kill him." Further, XG's formal police statement did not identify anyone from the group of boys who assaulted any of his family members. There was also cross examination as to XG's omission in his police statement of his observing the six individuals "stomping" on his father when he was on the ground. XG maintained in his evidence he did tell the police they were "stomping" on his father but they kept telling him to slow down and maybe it was not included in his statement as a result. It is clear from Exhibit 1 that when MG was on the ground he was being kicked and stomped by the boys surrounding him. In my view, in light of what is captured on the video and the evidence of JD respecting the assaultive behaviour towards MG, XG's omission concerning "stomping" does not seriously affect his credibility or reliability. I will have more to say concerning XG's credibility and reliability respecting his identification of the person he testified was responsible for using a rock as a weapon or assaulting his sister, ZG, later in my reasons.

[19] ZG testified as to the middle finger interaction between LD and herself and her mother. In my view ZG was forthright in her evidence on this issue and admitted in her evidence in-chief to giving LD the finger after she observed him giving her and her mother the finger from the second floor window. She indicated later becoming aware of the texts being exchanged between XG and LD, as well as being aware of the rumours circulating concerning her mother and CP. JD testified it was NG and ZG who first gave LD the finger as they were leaving the residence to go to the nail salon. He did not testify he was aware of the text exchange between LD and XG concerning the allegation made by CP against XG's mother. JD testified LD was looking out the window for CP who was coming over to the D. house. He was aware LD and CP were planning to leave to visit another friend, FL. He also described LD's reaction to being given the finger by ZG and NG. LD "flung the window open, like aggressively I would say and told NG, yelled out the window to grow up." Later in cross examination JD testified his brother opened the window "hard" and yelled out the window, "Grow the fuck up." This was what drew JD's attention to NG and ZG who were driving away and gave his brother the finger. In my view I found this description of LD's reaction to be inconsistent with the initial words JD testified LD said as opposed to his evidence in cross examination. NG testified LD was looking out the upstairs window and gave them the finger and she responded by giving LD the finger back. In my view JD did not see what or how LD was initially interacting with ZG and NG until after LD threw the window open and yelled at them. It was at this point JD looked and saw ZG and NG giving LD the finger. On the evidence I find he did not see how this interaction began.

[20] NG testified she was aware of the texts between XG and LD concerning LD spreading accusations she was having sexual relations with CP. NG was very familiar with the P. and D. families and knew LD and CP well. NG observed the group of young men walking down the street towards her house. She saw five boys including CP and LD, who were wearing bandanas and FL, BM and another boy, who she now believes to be E, with masks or ski masks. JD was not in this group of five. She was upstairs in her bedroom reading a book looking out the bedroom window. She called out and told everyone in the house they were coming. She did not come downstairs until she heard the front door open and close and ZG called out that MG had gone outside. She believed she was the last one outside.

[21] By the time she got outside the boys were already beating MG, who was on the ground, defenceless. She did not see how this started. She saw MG on the ground by the tree on their property. NG was therefore not outside until after the first physical altercation that occurred by the D. house and porch. She described the scene as surreal and chaotic. She heard CP yell, "Kick him in the balls." In her police statement she said she overheard CP yelling to everybody who was kicking MG to, "Stomp on his head." At some point she saw LD punch ZG. LD was dressed in black. Then everything just stopped. She described an individual in khaki who ran from where her husband was towards her and smashed a liquor bottle against the wall of the D. house and came at her. She tried to fend him off with a shovel and he backed her into a space between the two houses until she fell over. She went to the D.'s porch and asked the boys why they were doing this, particularly given the previous friendship between the two families. She testified JD and LD threw her off their porch. This was when ZG got a shovel and ran towards LD and JD and they ran back into their house. ZG struck the D. front door with her shovel. She saw MG bleeding from his head and she called 911. She and her daughter collected the weapons they found in the two yards and kept them for the police. There was blood all over the ground on both properties.

[22] At one point she saw LD and CP grab her son XG. This occurred after all the boys had been kicking MG who was on the ground had stopped. XG was in front of the flower bed by their front porch at this point. This is also consistent with JD's evidence that LD and CP punched XG after the punching, kicking and stomping of MG on the G. yard ended. XG had a blackened right eye, Exhibit 3a and 3b.

[23] NG testified she recognized CP because of his distinctive walk and LD by his height even before the group got to the D. and G. properties. She recognized FL by his face when she went up to him and removed his mask. She also recognized JD running in and out of his house. She saw CP come out of his house with a frying pan, waving it at her.

[24] NG in cross-examination testified she had discussed the allegations of her having a sexual relationship with a 15 year old boy with her husband MG. She felt numb to the whole situation and was hurt by the fact it was coming from LD because of their past history of treating LD like family. She did not see any weapons as the boys were walking down the street. She maintained all of the boys were kicking her husband when she saw him on the ground. It was not a fight, it was all the boys kicking her husband who was on the ground, defenceless. NG does not describe either ZG or XG being in the area where MG was being kicked by all the boys.

[25] In her statement to the police she said, "The names of the boys I'm sure I can identify are CP, LD, JD and FL." In her 911 call she identified LD and JD, CP and FL. She also mentioned the name BM and CW in her 911 call, Exhibit 9.

[26] MG testified he became aware of text messages between LD and his son XG that were troubling, so he asked what was going on. XG told him LD wanted to come and tell MG that NG had been sleeping with CP and MG testified he laughed and said LD could do that. Then he heard there were six of them coming down the street so he put on his boots and coat and went outside. There was a bunch of kids on the front lawn in front of his porch. He was walking toward LD, who he knew the best, to speak to him but he was struck from behind, which threw him forward. All of the boys then set on him with various weapons and boots and beat him to the ground.

[27] He was being kicked and stomped while he was on the ground and he remembered screaming for XG to help him. He understood five boys were on him, kicking him in the head. Someone slashed him with a knife and clubbed him with a rock. He recalled being able to get up at one point as his daughter, ZG, and his wife, NG, had engaged some of the boys. He saw his wife thrown to the ground. This was also seen by JD, who identified one of the unknown friends of LD, as the person who broke the liquor bottle and knocked NG to the ground. MG testified he saw his daughter punched. ZG testified this was when she first came outside and ran to pull some of the boys off her father. It was close to the D. house and porch. JD also testified, as I will discuss further below, to seeing ZG come to the group of boys, the "dog pile" as he described it, who were assaulting MG by punching, kicking and stomping him and he believed ZG had to have been punched as a result.

[28] As a result of the assaultive behaviour of the boys MG suffered injuries to his head, which bled profusely and required 19 staples to close on the top of his head and 7 stitches on his forehead and above his left eye. In addition, he had severely bruised ribs, his whole torso, where he had been kicked and stomped on. Exhibit 8 are a series of 9 photographs showing the injuries to MG's head.

[29] MG was not able to actually register any of the boys assaulting him other than they looked familiar to kids he had seen over the years. He knew when he was struck from behind he was walking towards LD to speak to him. After the physical altercation had ended MG saw CP outside the D. house waving a frying pan on the D. porch. This was also seen by ZG and NG.

[30] MG recalled the first blow from behind coming to the crown of his head. There are several lacerations from the photographs that can be seen in different locations on the top of MG's head. There were injuries to the right side of his head towards the back, two areas where his scalp was lacerated and to the left side of his head in the middle, at least two areas that were lacerated. There was a fifth laceration to the centre of his head. There were also lacerations to the left side of his forehead by the hairline and another laceration above the left eye. All of these injuries lead to the reasonable inference he was kicked or stomped in the head repeatedly on a number of occasions in the brief period of time he was being assaulted. Further, from the video, Exhibit 1, which I will discuss in more detail later in my reasons, there were different areas on both the D. and G. yards where MG was assaulted. MG testified his glasses were smashed on his face by a boot and then they were "holding him, dragging [him] around the yard, kicking, punching." He heard voices yelling to "kill him." He heard glass breaking during the incident. In his evidence MG described it as a "pretty chaotic scene."

[31] MG testified he became aware at the hospital his hands were unmarked other than a boot print from being stomped on. He also had a boot print on the side of his face. He saw these at the hospital and the boot prints were remarked on by the police.

[32] MG denied drinking any alcohol of any kind on the day this incident happened. When he was asked what he would say if in the hospital records someone had written, "had been drinking," he testified this would be incorrect because he had not been drinking. I discussed this earlier in my reasons.

[33] XG told MG around dinnertime, sixish, that LD had been texting him and wanted to fight. MG agreed the messages from LD were threatening. He did not know what to think about these messages and this was why he went outside to see what was going on. In his police statement he said he understood LD was saying they were coming "to teach us a lesson." The "us" he assumed meant his family. XG said there were six boys coming down the street who were masked and that was when MG went outside. He registered LD as being with the boys. LD was not wearing a mask or scarf. He wanted to speak with LD to calm things down.

[34] MG testified he did not recall LD saying to him, "At least my wife isn't fucking a 15-year-old." He denied punching LD in the face. He was struck from behind and did not see what he was hit with. He was asked about the knife and he testified he assumed the knife left the slash marks down the front and side of the top of his head.

[35] MG denied the suggestion he had been throwing snowballs at the D. house. If XG said he had thrown snowballs at the D. house he would disagree with XG. XG admitted he threw snowballs at the D. house before the altercation. He initially said his father was with him but then corrected himself and said his father was not there and denied the suggestion his father threw snowballs.

[36] He agreed he went to the D. house and said to LD and JD he had treated them like his own sons and then he spit at the front door after they slammed the door in his face. He was disgusted by what they had all done to him. ZG was there with him. She hit the door with a shovel and he gave it a boot. He was angry because they had slammed the door when he said what he said. He denied he was trying to get in the D. house to continue the fight. He kicked the door because of what they had just done. He believed they were trying to beat him to death.

[37] MG agreed he cannot say how many of the boys kicked him or stomped on him. The boys dragged him all over the two yards, both the D.'s and his yard. He went where he did under a "pile of bodies beating [him]." His front lawn was "painted" with his blood.

[38] MG testified he always carries a pocket knife in his pants. He denied arming himself with a knife before he went outside. He never took his pocket knife out of his pocket. He denied the knife, Exhibit 7, was his knife. He first saw this knife on his kitchen counter covered in blood. There were two very straight, sharp lacerations on his head and the knife was found at the scene with blood on it and he put two and two together. He agreed he was using deductive reasoning to think about a straight cut on his head and the presence of a knife after the fight.

[39] JD was called as a witness by Mr. Mitchell-Gill on behalf of his client LD. He is facing a charge of assault causing bodily harm in respect of MG, as an adult accused. He testified under a subpoena. I have already dealt with JD's evidence respecting the interaction between his brother LD and ZG, her friend R. and NG as they were leaving to go to the nail salon. It is my finding that JD only became aware of this interaction when he observed his brother aggressively open the window and yell outside to NG to "Grow the fuck up." It was his position the G. vehicle was parked on the street in front of the house because this was where he first saw it and he saw ZG and NG giving his brother the finger. Both ZG and NG testified the car was in the driveway and it was backed out and drove in front of the two houses. It is my view on the evidence that the interaction began with LD when the car was still in the driveway and LD was giving ZG and NG the finger. JD did not see how this interaction began as there was no reason for him to pay attention, as he knew his brother was waiting and watching for CP to come to the house. It was not until his brother aggressively opened the window and shouted an expletive that his attention was drawn to what was happening outside.

[40] It was JD's belief the physical altercation that he observed was caused by ZG and her mother giving LD the finger. I do not accept this evidence as being accurate, as it does not account for the level of animosity and anger and upset that was ultimately directed towards MG. It also does not explain why LD and XG would agree to fight each other one on one. As I have already indicated I accept the evidence of AM who saw and read the text messages between LD and XG. Her evidence was also supported by ZG who described XG showing her and NG the texts when they returned home. XG was frantic at this point. The giving of the finger was just a manifestation of the upset and anger that was brewing and developing between LD and XG that led to them agreeing to fight each other one on one. However, that was not what occurred.

[41] JD testified LD and his four friends, which included CP and FL, who JD knew well and recognized and two other individuals he claimed not to know but assumed were friends of his brother, were walking down […name of street…] towards the D. house. JD saw them coming and he went downstairs to open the door to let them inside the house. It is interesting to note that when JD was asked if the door was locked he could not remember despite testifying he was fearful for his safety because MG had been throwing 10-15 snowballs at the D. house earlier. XG admitted he threw a few snowballs at the D. house because of the earlier texts between him and LD. He testified he and ZG had gone outside and had thrown some snowballs at the D. house. However, JD testified it was MG who was throwing the snowballs at the house with his wife, NG and XG and ZG. Both MG and NG denied throwing snowballs or even being outside prior to the five boys walking down the street. I do not accept JD's evidence that it was MG who threw snowballs at the house. JD initially described being extremely fearful for his safety and he made it sound like this conduct went on for a long time, as he was continually trying to get hold of his brother LD who was with CP at FL's house. Yet the number of snowballs he finally alleged were thrown was only 10 to 15. During his conversation with LD he admitted he never told LD he was concerned and fearful for his safety. He agreed in cross he never communicated with his brother his level of fear such that LD would have thought JD was in personal danger. Further, when he saw LD walking down […name of street…] with four other boys, two he recognized as CP and FL, he ran to the front door to let them in but could not recall if he had locked the door. This is inconsistent with his stated fear for his safety.

[42] JD identified his brother, LD, CP and FL as being part of the group of five. He was well acquainted with CP and FL and knew them for years. He never got a good look at the other two who were wearing ski masks, which covered their faces. All five were entering the D. house after walking up the walkway. According to JD their entry was stopped as a result of the G. family coming outside all together and yelling at LD and his friends. LD and CP had entered the house but went back out when the G. family started yelling. JD testified he could not make out what everybody was yelling and arguing about. I find this to be somewhat incredible and unbelievable given he knew LD had agreed to fight XG and they were both outside according to JD and upset with each other, yet he has no recollection of the things the two sides were yelling. I find this unlikely, particularly having regard to what happened subsequently.

[43] The only thing he testified he did remember was hearing his brother yell at MG, "At least my wife ain't fucking a 15 year old." According to JD, MG responded, "E-F-F this," and punched LD. It was JD's evidence he was standing in the doorway of his house, without any shoes on. JD described everybody as screaming and yelling back and forth, it was "pretty even." JD described MG jumping over a little bush between the two properties and punching LD once. Later in his evidence he testified MG had swung three times but he did not know if MG had made contact with LD all three times. MG denied punching LD. MG testified he came outside and the boys were in front of his porch and he stepped down to speak to LD and he was struck from behind and fell into LD. All of the other G. family members testified the physical alteration had already started by the time each of them had exited and the five or six boys were surrounding MG punching, kicking and stomping on him while he was on the ground.

[44] JD testified after the punch the other four boys, including CP and FL, grabbed MG and "threw him right on the grass, and went – they beat him up." He later referred to the four boys "ripping" MG to the ground. MG ended up on the other side of the lawn. When JD was asked by Mr. Mitchell-Gill if he could see what the guys were doing to MG, JD answered, "Punching, Kicking, stomping. It was pretty brutal….It was aggressive, brutal, I don't – yeah, it was not good."

[45] JD did not see if anyone had a weapon except one of the boys he did not recognize who had a bottle. He described this person breaking the bottle against the D. house as NG went towards him with a shovel. This person dropped the bottle, ripped the shovel out of NG's hands, then he dropped the shovel and pushed NG between the two houses. This person hit or punched NG two times and she fell to the ground. While this was happening MG was still on the ground getting beaten up by the other four. JD's evidence concerning this physical altercation towards NG is very similar, if not identical, to NG's evidence concerning the boy in the khaki's, who she now believes is E., breaking the bottle against the D. house, coming at her, she grabbed a shovel to defend herself and the shovel was taken from her and NG was knocked to the ground by this person. Although NG and ZG and MG described this incident as occurring after the assaultive behaviour towards MG when he was on the ground ended. NG also did not describe being punched twice by this person.

[46] It was JD's testimony the assault on MG, after LD was punched, when MG was on the ground, was a "dog pile of stomping and fists" by the other four, with the exception of the guy with the bottle who was interacting with NG. The whole incident lasted from the punch for about two minutes, it was very quick. At the very beginning the guy who had the bottle was involved in throwing MG to the ground. MG was grabbed and thrown to the ground right after he punched LD. After the punch LD was pinned up against the wall of the D. house by MG until everybody grabbed MG and ripped him to the ground.

[47] JD was asked if he saw ZG get involved and he testified he saw ZG run towards the "dog pile" that was happening right before MG got hit onto the ground. She ran into a "dog pile of fists and kicks" so JD believed she had to have been hit at least a couple of times. He later saw ZG with a shovel in her hand at the same time he saw NG with a shovel dealing with the unknown guy with the broken bottle. Again, JD's evidence is very similar to ZG's evidence of coming outside, seeing her father against the wall of the D. house and then seeing her father get taken to the ground where all of the boys were punching, kicking and stomping him. She ran to her father's aid to try to pull some of the boys off him. She also described the boy with a broken bottle and how she and her mother both had shovels to defend themselves but she testified this happened later.

[48] JD saw XG get attacked after his dad did. "He got hit, probably in the face once or twice." JD denied being involved in any of the altercations that night with the G. family members. After it was over CP and LD came into his house. FL and the other two guys left the area.

[49] In cross-examination by Mr. Davoudi, JD agreed he had not been part of any pre-arranged discussion for LD and his friends to beat up the G. family. JD understood it was just going to be his brother LD and XG who were going to fight. All four boys jumped on MG but he could not say how many kicks FL threw at MG. When he was asked if he actually saw FL punch MG, JD answered, "There were fists being thrown everywhere, from all directions." JD saw all four guys go to where MG was lying on the ground but cannot actually say he saw FL striking MG.

[50] In cross-examination by Mr. Barrison, JD testified after MG punched LD, the other four boys grabbed MG and threw him to the ground and then they began "punching, kicking, whatever it might be, they're hitting MG." JD described ZG and her mother having shovels trying to get the boys off MG and then XG got involved.

[51] When JD was first being cross-examined by the Crown he became somewhat argumentative and made a comment that up until he was questioned by Mr. Stephens, "I was having a good day up until now." He said everybody else was being nice to him but Mr. Stephens was being "the only rude guy" to him. I interjected at this point to advise the witness that I did not believe the Crown was being rude or aggressive in the way he was asking his questions and if I did I would have intervened to put a stop to that but I had not. This exchange occurred when Mr. Stephens was putting certain Instagram accounts to JD that from the message read out in court clearly came from LD and it was clear to me JD did not want to admit his knowledge of this Instagram account. It is my view these comments by JD demonstrated a bias and agenda on JD's part.

[52] JD agreed he was aware from speaking to his brother by phone that LD and XG had agreed and planned to fight. He did not know his brother was returning to the house with four friends. He believed the fight was happening that day as everybody was mad, including LD. He saw LD walking on […name of street…]. Three of the boys were wearing ski masks, including FL. JD recognized him as he has known him since Grade 7 and he recognized his voice. CP was not wearing a mask or a bandana over his face, he just had a hoodie sweater on. LD was not wearing a mask.

[53] JD advised he had been shown the video, Exhibit 1, and watched it twice. The video did not capture everything that happened. The video according to JD started at his front step, although it did not show MG punching LD and you did not hear LD say to MG, "At least my wife isn't fucking a 15 year old boy." JD testified he believed the video started as soon as MG got hit back and thrown to the ground. It did not capture the back and forth argument at the very beginning of the confrontation between the two groups, LD and his friends and the G. family.

[54] In terms of any injury suffered by LD as a result of MG punching him, JD only saw a little cut under his right eye. It was very minor, it literally looked as if the cat could have done it.

[55] The video, Exhibit 1, was played in court and JD testified he could see MG being ripped to the ground and beaten up. This was at the point where 11 seconds have elapsed in the 1 minute and 11 second video. MG was the only person the ground getting stomped. At approximately 20 seconds MG was back on his feet and was being punched and pushed by two individuals. JD agreed you can see others running towards MG and he was pulled across the lawn and was forced back onto the ground where he was punched, kicked and stomped.

[56] JD testified from the video that one of the unknown guys with the bottle was interacting with NG but you can see the other four, including LD, FL and CP, around MG who is on the ground and they are punching, kicking and stomping him. It was a brutal beating. There was blood all over the front yards. He saw blood all over MG's face and the back of his head. JD told MG he had to go inside to get cleaned up or go to the hospital to get medical help as he was bleeding so badly. When MG was taken down on his own yard he was already injured.

[57] JD agreed he did not see ZG being punched on the video when she ran into the "dog pile" of people punching and kicking MG. This was before the video was started. He saw ZG being punched when MG was being punched and kicked by the wall of the D. house. JD saw ZG grab the shovel after she was punched. This is completely consistent with ZG's evidence. After it was all over three of the guys, including FL, ran away down […name of street…] and LD and CP and JD went inside JD's house.

The Governing Legal Principles

[58] As indicated above, this case involves consideration of the following legal principles: (1) self-defence, s. 34 of Criminal Code of Canada; (2) party liability; s. 21 of the Criminal Code of Canada; (3) consent fight and (4) the actus reus and mens rea of assault, together with the issue of whether the assault caused the bodily harm inflicted.

(a) Self-defence under s. 34

[59] The current s. 34(1) of the Criminal Code is applicable to this case:

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.

[60] Recently, the Ontario Court of Appeal in R. v. Mohamad, 2018 ONCA 966, [2018] O.J. No. 6302 (C.A.) dealt with the self-defence provisions in s. 34. Justice Watt for the Court held in paras. 213 to 218:

213 Section 34(1) consists of three elements, which may be briefly described as:

• belief (s. 34(1)(a));
• purpose (s. 34(1)(b)); and
• reasonable response (s. 34(1)(c)).

The first two elements involve an accused's state of mind, the third, an accused's conduct.

214 Section 34(1)(a) requires that an accused have a reasonable belief that force is being used or threatened against him or her or another person. The focus of this element is on the accused's perception, not the actual circumstances. As a matter of fact, there need not be actual force or even a threat of force. However, as a matter of evidence, the existence of actual force or threat of force would assist in satisfying at least the objective component of this essential element.

215 The belief component in the current s. 34(1)(a) has both objective and subjective elements. An accused who relies on the justification afforded by the current s. 34(1) must actually believe that force is being used or threatened against him or her. And this belief must be reasonable in all the circumstances.

216 The second element for which s. 34(1)(b) provides -- purpose -- also has to do with an accused's state of mind. But this element is purely subjective. The responsive act or conduct must be for the purpose of defending or protecting the accused or another person against whom force is used or threatened.

217 The final element -- reasonable response -- relates to an accused's conduct, i.e., what he or she does for the purpose of defence or protection. Section 34(1)(c) requires that the accused's conduct be reasonable in all the circumstances.

218 The determination of the reasonableness of an accused's response is informed by the factors set out in s. 34(2). The catalogue of factors inform but are not dispositive of the reasonable response element of the justification in s. 34(1)(c). Among the factors are:

i. the nature of the original force or threat; ii. the extent to which the actual or threatened use of force was imminent; iii. the availability of means other than those used by the accused to respond to the potential use of force; and iv. the nature and proportionality of the accused's actual response to the actual use or threat of force.

[61] Subsection 34(2) sets out a non-exhaustive list of factors a court is to consider in the course of determining whether the act or acts committed were reasonable in the circumstances pursuant to s. 34(1)(c). It provides as follows:

s. 34(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;

g. any history of interaction or communication between the parties to the incident;

h. the nature and proportionality of the person's response to the use or threat of force; and

i. whether the act committed was in response to a use or threat of force that the person knew was lawful.

[62] Mr. Mitchell-Gill submitted in his written submissions that I should accept JD's evidence that MG started the physical altercation by punching LD, although he conceded the events which follow went "too far" and as a result self-defence under s. 34 is not a viable defence. In effect he conceded the response by the boys was not reasonable in the circumstances, having regard to the factors set out in s. 34(2). Mr. Barrison in his written submissions adopted Mr. Mitchell-Gill's submissions in large part and he did not maintain there was any "air of reality" to self-defence. I did not receive written submissions from Mr. Davoudi, on behalf of FL, by 4 p.m. on April 18, 2019, despite giving him an extension beyond the date agreed to for filing the written submissions. I finally received Mr. Davoudi's written submissions the morning of April 23, 2019, when I indicated I would be providing my reasons for judgment. He did not address this issue in those submissions.

[63] I will address this issue during my analysis of the evidence called during this trial later in my reasons.

(b) Parties to Offences

[64] Party liability can be found under s. 21 of the Criminal Code. It provides:

s. 21(1) Every one is a party to an offence who

a. Actually commits the offence;

b. Does or omits to do anything for the purpose of aiding any person to commit it;

c. Abets any person in committing it.

[65] It is trite law to say that a person may commit an office by helping or assisting another person or persons to commit that offence. Section 21(1) of the Criminal Code provides for three modes of participation in a crime. Section 21(1) (a) governs principal parties: those who actually commit the crime. Sections 21(1) (b) and (c) govern aiders and abettors respectively. While it is common to refer to aiding and abetting together, those two concepts are distinct and liability can flow from either one: R. v. Briscoe, 2010 SCC 13, at para. 14. As noted in R. v. Greyeyes, [1997] 2 S.C.R. 825, at para. 26, "[t]o aid under s. 21(1) (b) means to assist or help the actor. To abet within the meaning of s. 21(1) (c) includes encouraging, instigating, promotion or procuring the crime to be committed".

[66] In R. v. Alvarez-Maggiani, 2018 ONSC 4834, [2018] O.J. No. 4321 (SCJ), Campbell J. set out what the Crown must prove for a person to be an aider or abettor under s. 21 of the Criminal Code:

38 In order to be guilty of any offence as an "aider," within the meaning of s. 21(1)(b) of the Code, the Crown must prove that the accused: (1) intentionally engaged in some conduct that actually assisted the principal in committing the offence; and (2) intentionally engaged in that conduct for the purpose of aiding the principal in the commission of the offence. Accordingly, as the governing jurisprudence reveals, the mens rea requirement for an "aider," as reflected in the term "purpose," has two components: intention and knowledge. The alleged "aider" must have both: (1) intended to assist in the commission of the offence; and (2) known that the perpetrator intended to commit the crime, although the "aider" need not know precisely how the offence will be committed. See R. v. F.W. Woolworth Co. (1974), 3 O.R. (2d) 629 (C.A.), at p. 640; R. v. Hibbert, [1995] 2 S.C.R. 973, at pp. 994-997, 1001-1004; R. v. Maciel, 2007 ONCA 196, at para. 87-89; R. v. Briscoe, 2010 SCC 13, at paras. 14-18

39 In order to be guilty of an offence as an "abettor," within the meaning of s. 21(1)(c) of the Code, the Crown must prove that the accused: (1) said or did something that actually encouraged, instigated, promoted or procured the crime to be committed by the principal; and (2) uttered the words or engaged in the conduct with the intention of encouraging, instigating, promoting or procuring the commission of the offence by the principal. In short, the alleged "abettor" must have intentionally acted to encourage the principal in the commission of an offence. See R. v. Greyeyes, [1997] 2 S.C.R. 825, at pp. 837, 842; R. v. Curran (1977), 1977 ALTASCAD 284, 38 C.C.C. (2d) 151 (Alta.C.A.), at pp. 156-157, leave denied, [1978] 1 S.C.R. xi; R. v. Rochon (2003), 173 C.C.C. (3d) 321 (Ont.C.A.), at paras. 53-61; R. v. Helsdon, 2007 ONCA 54, at para. 43; R. v. Chambers, 2016 ONCA 684, at paras. 36-38.

[67] While knowledge of another's intent to commit a crime and mere presence at the scene do not lead automatically to a finding of aiding and abetting, such factors can be evidence of aiding or abetting: R. v. Carrington, 2017 ONCA 2, at para. 23; R. v. Dunlop, [1979] 2 S.C.R. 881, at paras. 31-43; R. v. McKay, 2012 ABCA 310, at paras. 21-22; Alvarez-Maggiani, at para. 40.

[68] In this case there is more than one way for the Crown to prove LD, CP and FL guilty of the offence of assault causing bodily harm in respect of MG. In R. v. Barton, [2015] O.J. No. 6862 (SCJ), at para. 40, Justice Quigley, who was dealing with assaultive behaviour by four inmates towards a fifth person, which was captured on video, held, "If any of these four individuals committed all of the elements necessary to establish the offences, either alone or together with one or more of the other three, then they can individually or collectively be found guilty of the offences." In that case Justice Quigley held the case fell to be decided on the reasonable inferences available from the cell video of the actions of the inmates in Range 3BW at Toronto East Detention Centre on a particular date and time. This case is somewhat similar in that there is a video, however, there is also the viva voce evidence of the Crown and defence witnesses to consider together with the video.

[69] Justice Quigley went on to summarize the caselaw dealing with the liability of parties under s. 21(1) of the Criminal Code, and I adopt his reasoning for the case at bar:

41 The point is made in the seminal Supreme Court of Canada decision in R. v. Dunlop and Sylvester, [1979] 2 S.C.R. 881. That was a case of gang rape where 18 men had sexual intercourse with the complainant against her consent, while she was being held by two other members of their group. The complainant identified the accused as two of the men who attacked her. They acknowledged having been nearby when the offence occurred, but denied having any involvement.

42 At page 8, Dickson J., noted:

Mere presence at the scene of a crime is not sufficient to ground culpability. Something more is needed: encouragement of the principal offenders; an act which facilitates the commission of the offence, such as keeping watch or enticing the victim away, or an act which tends to prevent or hinder interference with accomplishment of the criminal act, such as preventing the intended victim from escaping or being ready to assist the prime culprit.

43 He went on to reference a passage from Hawkins J. at page 557 of the leading British case, R. v. Coney (1992), 8 Q.B. 534 as follows:

Non-interference to prevent a crime is not itself a crime. But the fact that a person was voluntarily and purposely present witnessing the commission of a crime, and offered no opposition to it, though he might reasonably be expected to prevent and had the power so to do, or at least to express his dissent, might under some circumstances, afford cogent evidence upon which a jury would be justified in finding that he willfully encouraged and so aided and abetted. But it would be purely a question for the jury whether he did so or not. So if any number of persons arranged that a criminal offence shall take place, and it takes place accordingly, the mere presence of any of those who so arranged it would afford abundant evidence for the consideration of a jury of an aiding and abetting [my emphasis].

44 Equally relevant is the decision of the British Columbia Court of Appeal in R. v. J.F.D 2005 BCCA 202, 196 C.C.C. (3d) 316. In that case the three appellants were found guilty of causing danger to life by wilfully discharging a flare gun, which set fire to a vessel, contrary to s. 430(2) of the Criminal Code, R.S.C., 1985, c. C-46. However, the Crown could not prove which of the three appellants had actually fired the flare that caused the fire that resulted. The judge found that since the accused acted in concert pursuant to a common motive, it was not necessary to determine which of the three appellants had actually discharged the particular flare that caused the damage, and in the circumstances, all three were found guilty either as principals or as aiders or abettors. At paragraph 10, the court observed that the law of England has long been that where two or more persons are charged with an offence, and the jury cannot determine which of the participants actually committed the offence, all may be convicted if it is clear that they aided and abetted the principal offender. The point is confirmed by the decision of the Supreme Court of Canada in R. v. Isaac, [1984] 1 S.C.R. 74, at pp. 80-81.

45 After referring to the Dunlop and Sylvester decision, Oppal J.A., writing for the British Columbia Court of Appeal in J.F.D. clearly states the rule as follows:

Where two or more persons are charged with committing a criminal act, the Crown need only prove beyond a reasonable doubt that the parties acted in concert with one another in committing the offence. The Crown is not required to prove the degree of involvement of each individual as long as it is established that each of the persons actually committed the crime, or did something for the purpose of aiding or abetting any person in committing the crime. It would be impractical and at times impossible to delineate and define with any exactitude the individual involvement of the participants in certain circumstances. For example, the participants of a gang attack cannot escape liability if the prosecution is unable to prove the degree of involvement of each participant. The judge was correct when he stated at paragraph 19 that:

... They cannot, in my view, seek to avoid liability by simply saying "you can't prove which of us fired the particular flare"... (at para. 14).

[70] While mere presence is not sufficient to establish an individual is a party to the offence, the Crown argued that the evidence establishes beyond a reasonable doubt that each of the three young persons intended to be present at the D. house for a consent fight between LD and XG and later were all part of a common enterprise directed towards the goal of assaulting MG, who became involved with them, in a manner that would be objectively foreseeable that such assaultive behaviour would subject MG to the risk of bodily harm, or at a minimum, aiding and abetting in that exercise. I will further address my conclusions and findings from my review of the video and the evidence called during this trial in my analysis.

(c) Consent Fight

[71] In Canada, if LD consented to fight with MG, LD's application of force would not be an assault because Mr. G consented to it. However, the criminal law will not recognize Mr. G's consent as legally valid where Mr. D. both intended to and actually caused serious or non-trivial bodily harm (see R. v. J.A., [2011] O.J. No. 28, at paras. 129 to 130, where the Supreme Court of Canada cites R. v. Jobidon, [1991] 2 S.C.R. 714, R. v. Paice, [2005] O.J. No. 2504 and R. v. Quashie, [2005] O.J. No. 2694 (C.A.) and see also R. v. McDonald, 2012 ONCA 379, [2012] O.J. No. 2504 (C.A.), at paras. 25-28). In R. v. MacDonald, supra, at para. 28, the Ontario Court of Appeal held, after reviewing Jobidon, Paice and Quashie:

Accordingly, following Paice and Quashie, consent is vitiated only when the accused intended to cause serious bodily harm and the accused caused serious bodily harm. The defence of consent may, if the facts support it, be available in the context of a charge of aggravated assault. In the case at bar, in my view, the trial judge erred by removing the defence of consent from the jury for its consideration on the charge of aggravated assault.

(d) Assault Causing Bodily Harm

[72] The actus reus of assault causing bodily harm is the intentional application of force on another person without their consent resulting in bodily harm. The mens rea adds the requirement that the risk of bodily harm was either intended or was an objectively foreseeable consequence of the accused's conduct: see R. v. Nurse, [1993], O.J. No. 336 (C.A.).

[73] Section 2 of the Criminal Code defines bodily harm as "any hurt or injury...that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature". Whether a bodily harm injury has been sustained by a victim is a fact-driven assessment in the circumstances of each specific case. It is commonly known that a bruise can be caused by a blow to the body – a contusion usually producing a hematoma that discolours but does not lacerate the skin in a confined area (see R. v. D.B., 2013 ONSC 7753, [2013] O.J. No. 6476 (SCJ, Hill J.), at paras. 128 to 130). Under certain circumstances a "bruise" alone may qualify as bodily harm.

[74] In this case the defence have conceded MG suffered bodily harm. It is the defence position that the timing of when the bodily harm occurred in this case cannot be determined. The defence further submitted MG was assaulted by different unidentified groupings of boys, on different occasions, perhaps using different weapons or different methods of assaultive behaviour. Therefore, the defence submitted the Crown has failed to prove beyond a reasonable doubt that any of the young persons charged are guilty of causing the bodily harm occasioned. Mr. Mitchell-Gill submitted it is impossible to know if all of the five individuals around MG at the end of the altercation are in fact LD and his four friends who returned to the D. house from FL's house. Some of the persons around MG could be XG and/or ZG and given none of the individuals can be identified on the video it is impossible to find the Crown has proven the guilt of the three young persons beyond a reasonable doubt. The Crown submitted the assaultive conduct directed towards MG was a swarming or gang attack and the fact that the Crown might be unable to prove the degree of involvement of each of the participants does not mean they are able to escape liability.

Analysis

[75] I had an opportunity to view the video, Exhibit 1, in court on the numerous occasions it was played for the various witnesses. In addition, I have watched the video several times in preparation of these reasons for judgment. There are a number of findings that I make based on the video itself. I will indicate at the outset, I am unable to identify any of the three young persons who are on trial solely based on the video.

1. The video starts with an altercation between a group of individuals and one person beside the wall of the D. house and porch. The one person can be seen on the ground and there are a number of persons around this individual engaged in what appears to be assaultive behaviour. This can be seen at the beginning of the video between the 11 to 15 second mark. At the start of the commotion when the video starts one can hear screaming and voices raised as well as sounds of persons exerting themselves. LD's comment alleged to have been said to MG is not heard on the video, nor is there a stand-off between two groups with screaming and yelling going back and forth by both groups. The alleged punch by MG is also not to be seen on the video.

2. There is then a black portion on the video. The next thing seen is a person on the ground getting up and there are two people who are punching and pushing this person to the left. Others are rushing in and this person is then taken further onto the G.'s front lawn, moving from the right to the left by this assaultive conduct. This occurs on the video around the 20 to 22 second mark.

3. There is another black portion and then the camera focuses on the G. front lawn by a tree where a person is on the ground with what appears to be three persons surrounding and punching, kicking and stomping this person. Two other persons can be observed running from the D. yard and also becoming involved in engaging in assaultive behaviour with the person on the ground. This sequence is from the 32 to 37 second mark on the video. All five persons surrounding the person on the ground are standing and moving towards this person on the ground with punching, kicking and stomping motions. There are no persons grabbing any the five persons assaulting the person on the ground in an effort to pull them off. Throughout the assaultive conduct, yelling can be heard by those involved – one thing which can be specifically heard is "Stomp his ass."

4. At the 37 to 39 second mark one of the individuals who had been involved in assaulting the person on the ground, backed up onto the D. property and then this person moved back toward the person on the ground. A second person joined this individual at 41 seconds and they both backed up onto the D. property. At the 43 second mark the others who had been surrounding and assaulting the person on the ground ran back onto the D. property looking back at the person who was still lying on the ground.

5. At this point the assaultive behaviour abruptly stopped. At the 45 to 46 second mark the person on the ground got up and walked unsteadily back towards the G. front porch. No one else who was around the person on the ground walked back to the G. porch.

6. The video went dark again and then, something hitting the ground can be heard, a then showed a black rock he said was thrown at him (note: XG identified the voice as being his voice).

[76] The video is too dark to identify the person on the ground or any of the five persons around this individual who, in my view, are clearly punching, kicking, stomping and assaulting the person on the ground. All of the witnesses who testified during the trial only identified one person as being on the ground, namely, MG. This was JD's clear evidence – only MG was on the ground, where he was brutally beaten by punching, kicking and stomping. JD described the punching, kicking and stomping as aggressive and not good.

[77] Further, when the evidence of JD is examined together with Exhibit 1, it is my view there is no doubt the individuals involved in assaulting MG when he is on the ground on the two occasions seen in the video – at the start when MG is taken to the ground by the D. house and porch and later when he is taken to the ground again on the G.'s property after getting on his feet – includes LD, CP and FL, the three young persons charged with assault causing bodily harm. JD, both in-chief and in cross-examination, identified his brother LD, CP and FL, together with the two unidentified friends of LD, as all being actively involved in assaulting MG as he lay defenceless on the ground on these two occasions. At no time in JD's evidence did he indicate, for example, his brother LD was not involved in the punching, kicking and stomping that he testified he saw happening or that either CP or FL were not involved. The only person JD maintained was not involved in assaulting MG was himself. JD was clear in his evidence and he was not seriously challenged in cross-examination that he saw LD, CP and FL, all involved in punching, kicking and stomping MG. JD also confirmed what he testified he saw with his own eyes, he saw occurring on the video, Exhibit 1. When one adds in the evidence of MG, XG, ZG and NG as to the assaultive actions of LD, CP and FL that they observed being directed towards their father or husband, MG, as he was laying on the ground, this conclusion in my view becomes irrefutable and absolutely certain. The G. family members' evidence as to the sequence of the assaultive conduct in many respects was corroborated by that of JD.

[78] I also find that the physical attack of MG was completely chaotic, extremely violent and would have been for anyone observing it – utterly horrific and terrifying. All of the G. family members described being shocked by the ferocity of the physical attack they observed happening towards MG, as they exited their home. I find it is not surprising and it is perfectly understandable that there were inconsistencies in the evidence of these witnesses. JD's description of the beating of MG, by his brother LD and his four friends, as "brutal," "aggressive" and "not good" is in my view an apt and fitting description. Further, JD's description is that of a joint enterprise being conducted with a common purpose, which was to seriously assault MG. It is also significant that the whole time period this assaultive behaviour occurred was only one and a half minutes to two minutes in total.

[79] The defence argued MG started the altercation by punching LD in the face because of LD's comment to him. The only evidence of this comes from JD, LD's brother, who is also facing charges in relation to this physical altercation, as an adult accused. He is still awaiting his own trial. Initially his evidence was MG responded to LD's comment by stepping over a small bush, coming onto the D. property and punching LD once in the face. He later added that MG swung three times but he did not know if MG connected each time with LD. I have concerns about the veracity of JD's evidence on this issue of how the altercation began.

[80] First, LD only had a small cut below his right eye, which JD described as very minor – a scratch that could have been caused by a cat. It is my view JD was attempting to embellish his evidence of MG's reaction to LD's comment by later adding that MG swung his fist three times towards LD, although he did not know if MG connected more than once. In my view that was an example of JD attempting to increase the severity and seriousness of MG's response. Certainly, if MG had struck LD three times in the face there is a reasonable inference the injury to LD would have been far more serious than observed. In fact, Mr. Mitchell-Gill in cross-examining MG put to him a suggestion that MG punched LD three times in the face, despite JD's evidence that was ultimately led of not being aware if MG connected every time or only once.

[81] Second, I do not accept JD's evidence that all of the G. family were standing beside MG when this comment was allegedly made by LD. It is my view on the evidence that the G. family members came outside at different times and in the sequence they described in their evidence. I make this finding based on the evidence of AM, which I accept as credible and reliable, who came outside with XG. She was aware of the text messages between LD and XG. She was given the task of recording the events and the video clearly does not record the start of the altercation. If XG and the other G. family members were standing beside MG when LD's comment was made and MG's reaction occurred, there is a reasonable inference AM would have captured this on the video. None of this interaction described by JD is present at the start of the video. AM was not asked by any counsel whether she overheard LD's comment to MG. In fact, none of the G. family members, other than MG, were asked if LD said something to MG, which caused him to throw the first punch. It was as if the defence accepted each of ZG, XG and NG's evidence that none of them saw how the physical altercation started. I found the evidence of the individual G. family members as to when they came outside to be credible and what they each testified they first observed accorded with what can be seen on the video.

[82] Mr. Mitchell-Gill submitted that JD's version was more credible than MG's evidence, however, this submission completely ignored the texts being sent between LD and XG. The texts were described as being nasty, offensive, insulting and derogatory towards NG and the allegation of her sexual involvement with CP. These texts were seen by ZG, AM and XG and were discussed in their evidence. None of those who saw the texts were challenged in their evidence as to what the texts said. The evidence relating to those messages in my view demonstrated on LD's part, an anger and upset that caused him to make an agreement to fight XG one on one. LD told his brother JD he was coming back to "deal with it" – "it" being the fight between he and XG. JD testified LD said he was coming home for the purpose of fighting XG. JD testified when he spoke to LD, LD seemed mad. It is no less credible for LD to arrive at the G. house and call out XG to fight. It is my view the evidence supports this view. ZG and NG both described hearing someone yelling for them to "Come outside." Mr. Mitchell-Gill refreshed ZG's memory by reading to her a portion of her police statement where ZG told the police the boys were yelling, "Come out pussies."

[83] Further, LD did not come alone to fight XG, he brought four friends, three of whom were wearing ski masks. LD and CP were wearing either hoodies alone or hoodies and scarves (bandanas), which covered their faces. The boys were also wearing gloves. There is a reasonable inference they were attempting to disguise themselves to prevent anyone being able to identify them. In my view LD and his friends were not coming back to his house to order pizza and have some supper. It is my view the more likely scenario as to who started the altercation is LD and his friends. I do not know who had which specific weapons but some, if not all, of these boys were spoiling for a fight and when MG made the mistake of coming outside to speak to LD to try and calm down the situation, he became the individual all of the upset and anger that initially fueled the texts was directed towards.

[84] Mr. Mitchell-Gill referred in his written submissions on a number of occasions that MG admitted in cross-examination that he threw snowballs at the D. house, however, this was not the evidence as reflected in the transcript from March 27, 2019, at p. 115, where MG denied throwing snowballs. The only evidence of MG throwing snowballs at the D. house comes from JD and I do not accept his evidence on this. Initially JD made it sound as if he was very fearful for his safety and as a result, he contacted his brother LD and told him what was happening and how he felt. However, in cross-examination JD testified he never told his brother he was afraid of MG causing him bodily harm, rather, he was just concerned about damage to the window. As I have already found for the reasons indicated above it is my view MG was not throwing snowballs at the D. house, it was XG. It was part of Mr. Mitchell-Gill's submission that I should accept JD's evidence that MG threw the first punch because of this earlier incident respecting the throwing of snowballs by MG, as this demonstrated how upset and angry MG was concerning the allegations being made against his wife. However, as I have found MG did not throw any snowballs, it was XG who threw them, which accords with common sense, as he was the one texting back and forth with LD and he had agreed to fight LD because of those texts.

[85] It is my view therefore for the above reasons that I find MG was struck from behind when he came outside and he tried to speak to LD. This assault caused him to pitch forward into LD and then the assault or swarming perpetrated by the five boys was on. MG was ultimately grabbed and punched to the ground by some or all of the five boys who came down […name of street…] and went onto the G. property. The first physical altercation involving punching, kicking and stomping occurred by the D. house and involved at the very least all five of these boys. MG was able to get up after this first swarming, he tried to run away but he was grabbed again and punched and pushed by two of those same boys, causing him to be taken down to the ground a second time further on to the G. property by a tree. Once MG was on the ground again the same five boys surrounded him, punching, kicking and stomping on him as he lay defenceless on the ground. On the video he appeared to be curled up in a fetal position as the blows rained down upon him.

[86] I agree with the Crown's submission that even if MG threw the first punch the assaultive conduct engaged in by CP, FL, the two unidentified individuals (perhaps BM and E as identified by NG), and LD, which resulted in the grabbing of MG and then "ripping" him to the ground. This was followed by punching, kicking and stomping of his prone body as he lay on the ground, which in my view went far beyond any concept of reasonableness in terms of self-defence and s. 34 of the Criminal Code. In my view this assaultive conduct could only be described as a swarming, where all of the young boys were actively engaged in punching or kicking or stomping or a combination of two or more of those assaultive behaviours or were involved in actively encouraging those who were actively assaulting MG. This was attested to by JD, who, on this issue, is not in any way biased in favour of MG.

[87] I find the actions of the five boys towards MG demonstrated the physical assaultive behaviour was anything but reasonable in the circumstances. I have no doubt the force used towards MG was excessive. I find MG did not have a weapon. I have found above that he did not commence the physical altercation by punching LD. Even if he had started it by punching LD there were a number of alternatives available to the five boys, for example, exiting into the D. house and calling the police or tackling and holding MG on the ground until the police arrived. Instead four boys and then five boys engaged in an aggressive, violent brutal beating of an individual who was defenceless on the ground, unable to escape because he was surrounded and being repeatedly kicked and stomped on. During the four to five second (32 to 37 second mark on Exhibit 1) where all five boys can be seen surrounding MG, I was able to see one of those boys jump up into the air and land on MG's head with his knee. It is within seconds after this that one of the boys was backing up onto the D. property. JD agreed with the Crown the size and build of the five boys resembled fully grown young men and that MG is not a large man himself. I have no doubt the underlying allegation against NG having sex with CP was what fueled the animosity and anger demonstrated by the texts between LD and XG and the decision by the five boys to return to the G. house spoiling for a fight, initially between LD and XG and ultimately, by the five boys towards MG, who made the mistake of wanting to try to talk to LD to calm the situation down. Certainly there had not been any history of violence by MG towards the three defendants. In fact, the evidence is to the contrary as LD had been to the G.'s home on numerous occasions and had even gone on vacations with the G. family. I find the provisions of s. 34(1) and the factors set out in s. 34(2) preclude the availability of self-defence on the facts of this case. I find all five boys, including the three young persons on trial, LD, CP and FL are parties to the offence of assault causing bodily harm.

[88] In my view this was not a consent fight as perhaps was initially contemplated by the agreement reached between LD and XG. As I indicated above in my view this was a swarming, where all five boys intended to physically assault MG. On the evidence I find some or all of the five boys had items that were used as weapons. A black rock, Exhibit 4, was held up to the cell phone recording the video by XG, after it was heard hitting the ground and he picked it up. It is unknown on the evidence who threw this rock but it was clearly thrown by one of the five boys who had been brutally beating MG. This occurred after the assaultive conduct towards MG had ended, which leads to the reasonable inference whoever threw this rock had it during the assault. A vodka or liquor bottle was broken against the D. house by one of the unidentified boys. This was not a small item that could have been easily concealed and therefore all of the five boys walking down […name of street…] knew one of their number was carrying a liquor bottle. There was no reason for someone to be carrying an empty liquor bottle in these circumstances except to use it as a possible weapon. A glass candle holder was entered as Exhibit 6 as having been found on the G. property after the assault and there was evidence it was seen in the hands of one of the five boys. Finally, a black handled knife, Exhibit 7, not a pocket knife, was found in the snow in the area where MG was attacked on his property. MG observed straight cuts to his head, which he believed were caused by a knife and a knife was located in the snow on the G. property where MG was being assaulted by the five boys. The knife was found by ZG. I do not believe this knife was MG's small pocket knife, which he testified he always carried but did not take out or use. I find, given Exhibit 7's location, this was a further item brought to this altercation by one of the five boys. JD testified it was light enough out to see things in people's hands as he was able to see that AM had a cell phone in her hand and was filming what was occurring, despite the fact she was on the G.'s porch, which appears to be quite dark from the video.

[89] In terms of the issue of causation respecting the injuries suffered by MG as a result of what I have found to be a swarming, it is my view the events of February 1, 2018, the minute and a half to two minutes, were one continuous assault by the five boys towards MG. It commenced with MG being struck from behind and being propelled into LD by the D. house/porch. It was the evidence of JD that MG was "ripped" to the ground and then punched, kicked and stomped by all of the boys. The video on his evidence started when MG was hit and thrown to the ground. In fact, JD testified he saw MG get thrown to the ground beside the small bush on the front lawn. He also testified he observed this on the video, Exhibit 1. This was at the 11 to 15 second mark of Exhibit 1. MG was the only person taken to the ground. The video then went black and at around the 20 second mark and following, JD testified he could see MG back on his feet but he was being punched and pushed by two people. MG was not punching anybody. It was at this point that JD testified he saw the boy in the khaki jacket break the bottle, take a shovel from NG and then punch NG twice, and she fell to the ground. Then MG was knocked back onto the ground on the G. property and JD described how everyone was going towards MG. All four boys, including LD, CP and FL, were kicking and stomping on MG who was once again on the ground. At the 32 second mark and following, MG is on the G.'s lawn and he was being punched, kicked and stomped, according to JD's evidence, by LD, CP and FL and one of the unknown guys with a ski mask. As I have already found however, there were all five boys surrounding MG on the ground when he was being punched, kicked and stomped on the G.'s lawn, just before everything stopped. There was blood on both lawns. I find from the evidence the only person with blood dripping from his head was MG. I find the brutal beating of MG was one continuous assault, during which the three defendants were actively involved in assaulting MG as equal participants. The total time of the assaultive behaviour is less than two minutes. The nature and manner of the assaultive behaviour towards MG in my view proves beyond a reasonable doubt an intention to cause bodily harm or at the very least it would be objectively foreseeable to those punching, kicking and stomping that the risk of bodily harm would result from their assaultive behaviour. Further, the comments attributed to CP, "Stomp his ass" and the actions, which can be observed on the video, Exhibit 1, towards MG as he lay defenceless on the ground, surrounded by the five boys, where he was kicked and stomped clearly support this finding.

[90] The five boys were equal participants, their conduct amounted to far more than mere presence. It makes no difference if each of the boys did not deliver an equal number of blows or kicks or even any blows or kicks. They can be seen surrounding MG as he lay defenceless on the ground, in my view the presence of these five boys prevented MG from being able to escape or even get up. It is clear from the video there was a common purpose attributable to all five boys. All of the boys surrounding MG were moving towards him to administer blows and kicks and the physical presence of the five boys in my view encouraged each of the boys to contribute to the assault. As I have already found given the aggressiveness and viciousness of the assault, where some of the boys were utilizing weapons as described above, there was either an intention to cause bodily harm or at the very least it was objectively foreseeable the risk of bodily harm was a reasonable consequence. Consequently, on the totality of the evidence called during this trial I find the Crown has proven beyond a reasonable doubt the three young persons, LD, CP and FL assaulted MG and caused him bodily harm.

[91] LD is also charged with assaulting ZG during the physical altercation that commenced after MG was first assaulted. I have no doubt on the evidence that ZG was assaulted. She testified she was assaulted by LD and she knew it was LD because she saw a fist attached to an arm in a grey jacket strike her in the face. JD testified ZG had to be struck by someone when she went into the "dog pile" around MG. He did not see her punched by any specific person. NG testified she saw LD punch ZG but she testified LD was dressed in all black. XG testified he saw LD punch ZG but this was not in any of the statements he made to the police. While I am very suspicious that it was LD who punched ZG this does rise to the level of proof required in a criminal case and as a result I must dismiss that charge.

[92] With respect to the assault with a weapon charge involving XG. He told the police in his statement he did not see who threw the rock at him. On the video it was XG who picked up the black rock, Exhibit 4, and held it up to the camera identifying it as a rock someone just threw at him. He did not identify LD as the culprit on the video. His testifying at trial that LD threw the rock at him does not come close to proving beyond a reasonable doubt it was LD. I find on the evidence that someone threw a black rock in the direction of XG, however, I do not know who that was. On the evidence I have no doubt both LD and CP assaulted XG and this was likely when XG suffered his black eye, this assault was observed by NG and ZG and by JD, however, this assaultive conduct was not one of the charges laid by the police. As a consequence, there can be no finding of guilt respecting this conduct.

[93] Finally, MG believed he was struck by a rock and a knife but he was unable to identify the individual who did that. The evidence pointing to LD as having a rock came from XG and I have already identified the reliability issues surrounding his identification of LD throwing a rock at him. Consequently, it is my view the evidence does not meet the high standard of proof beyond a reasonable doubt and that charge is dismissed as well.

Released: April 23, 2019

Signed: Justice Peter C. West