Court File and Parties

Date: July 13, 2020

Information No.: 19-Y17

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

J.D. and R.P.G.

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 110 OF THE YOUTH CRIMINAL JUSTICE ACT

Before: Justice R. Marion

Counsel:

• G. Spartinos, for the Crown
• B. Dube, for the Accused J.D.
• J. Santarossa, for the Accused R.P.G.

Matter heard: July 7, 8, 9 & 13, 2020

Reasons for Judgment

MARION J.:

Charges

[1] R.P.G. and J.D. are young persons under the Youth Criminal Justice Act. They are jointly charged on Information 19-Y17 on three counts as follows:

Count 1 – that in committing an assault on Bryan Moore, they wounded him thereby committing an aggravated assault contrary to s. 268(2) of the Criminal Code.

Count 2 – with possession of a motor vehicle owned by Michelle Syring of a value exceeding $5,000, knowing that the vehicle had been obtained by an offence punishable by indictment contrary to s. 354(1) of the Criminal Code.

Count 4 – that they did in committing an assault on Bryan Moore, use a weapon, namely a knife contrary to s. 267(a) of the Criminal Code.

J.D. is charged alone on Count 3 with mischief by wilfully damaging the door of a motor vehicle owned by Bryan Moore, the value of which did not exceed $5,000 contrary to s. 430(1) of the Criminal Code.

Incident and Issues

[2] The incident leading to these charges occurred on March 14, 2019 at the City of Windsor at approximately 5:52 p.m.

[3] The issues in the case at bar are as follows:

1. Was J.D. acting in self-defence when engaged in an altercation with Bryan Moore?
2. When a number of persons unknown intervened and someone stabbed Bryan Moore, was J.D. a party to the offences charged of aggravated assault and assault with a weapon?

Agreed Statement of Facts

[4] An Agreed Statement of Facts was filed. It reads as follows:

1. In March of 2019, Michelle Syring lived at St. Patrick's Avenue in Windsor. She is the registered owner of a black Ford Escape with licence plate number BMEV 421. When she went to bed on March 10, 2019, the vehicle was in her driveway. At 7:00 am the next day she noticed the vehicle was gone. Neither Ms. Syring nor her husband know any of the accused parties. They did not give permission to anyone to take the Ford Escape.

2. Michelle Syring's Ford Escape was located by Windsor Police in Amherstburg on March 15, 2019 at 12:13 pm. It was inspected for possible evidence. Two knives were located inside the vehicle with apparent blood staining. The steering wheel also had a blood stain. All three items were swabbed by WPS forensic identification officers and the swabs were sent to the Centre of Forensic Sciences for analysis. DNA profiles were developed from all three swabs. R.P.G. can be excluded as the source of DNA from all three profiles. J.D. is excluded as the source of the male DNA profile on all items tested except the steering wheel. The STR DNA results are estimated to be greater than one trillion times more likely if the DNA profile originates from J.D. than if it originates from an unknown person unrelated to him. J.D. can be excluded as the source of the DNA profiles from the two knives.

3. On April 2, 2019, Bryan Moore participated in photo lineups related to J.D. and R.P.G. Mr. Moore did not select the photographs of J.D. and R.P.G. from the photo lineups. Regarding the photo of R.P.G., Mr. Moore expressed "No, I didn't see any tattoos on anybody." The photo of R.P.G. used in the lineups was taken upon his arrest on March 20, 2019, and it shows that he has a large tattoo on the left side of his neck.

[5] In addition, it was agreed that on March 20th, 2019 P.C. Lasorda observed the following injuries to J.D.:

A small laceration at the base of the right thumb over one centimetre in length and a series of abrasions to his left shin area. No other injuries were observed.

Crown Evidence

[6] No Defence evidence was called.

[7] The only Crown witness called to testify was Bryan Moore. He resides in an apartment at 1098 California Street in Windsor. He is the manager of a number of small apartment buildings including the one where he resides located at the intersection of California Street and Girardot Street. There is a small parking lot behind the building. There is an alley adjacent to the parking lot which extends behind the building and empties onto Girardot Street.

[8] When returning to his residence at approximately 5:50 p.m. he noticed a vehicle operated by J.D. was parked in his parking spot. He told J.D. to move his vehicle as J.D. was exiting his car. J.D. replied, "fuck you, I'll be back in a minute". J.D. crossed Girardot and entered the Variety Store at the corner of the intersection.

[9] Video evidence confirms Moore stationed his vehicle in the alley such that exiting the parking lot to enter Girardot Street would have been difficult if not impossible. In fact, after the altercation the complainant is seen backing out his vehicle and crossing Girardot to enable J.D. to drive away.

[10] Moore waited near J.D.'s vehicle. He admits he was "pissed off". He saw three passengers in the vehicle. They were looking at their cell phones and they told him to relax. A short time later J.D. exits the Variety Store and walks back to his car. He is described as ranting all the way but Moore could not hear what was being said, however, J.D. told him once again "fuck you" as he entered his vehicle.

[11] Moore was unfamiliar with any of the four trespassers. He surmised that the young persons were 17-18 years old. The young persons before the court were 16 years of age. Moore was 55 years of age. Moore stated that he never felt threatened or intimidated by the boys. There is a high school nearby and he has often had to confront people parking behind the building. Moore is 6'2" to 6'3" tall and weighed 235 to 240 lbs at the time. He estimated that J.D. was 5'6" to 5'7" tall and weighed 140 to 150 pounds.

[12] J.D. did not make any attempt to leave. Since no initiative was taken to leave, Moore walked 6-8 feet to his vehicle to retrieve a can of brake oil which he kept on the floor near the console of his vehicle.

[13] It is evident that Moore was intent on confronting J.D. with the can of brake fluid in hand. He stood near the open window behind the driver's seat. When he saw J.D. look to the side in the direction of the front passenger, he sprayed the liquid in his face. No threat or threatening gesture was made by J.D. prior to the attack with what Moore described as "legal mace". Moore acknowledged that he felt "something was going to happen". Despite this intuition, he nevertheless went back to stand near J.D.'s vehicle. He states that he only sprayed him because he saw J.D. go for the door as if to exit the car. I do not accept that evidence as it is inconsistent and illogical as he sprayed J.D. when he was looking to his right and not in the direction of the door. Moore was on J.D.'s left side and if J.D. at the time was exiting to engage Moore, he would surely be looking in his direction.

[14] Upon being sprayed, J.D. screamed and exited the vehicle swinging wildly. Moore sprayed him again but on this occasion it was directly in the eyes.

[15] Moore explained that the brake fluid causes temporary blindness. It causes a person's eyelids to close for one to two minutes. He admitted that he used it in the past on two other occasions in self-defence. He further admitted that he was convicted in 2010 of aggravated assault where he had sprayed brake fluid in a victim's eyes. In that case, his claim of having acted in self-defence was rejected.

[16] He felt that the brake fluid had little effect on J.D. I doubt the accuracy of that observation. J.D. screamed when he was sprayed. In addition, Moore described J.D. as swinging at him trying to punch him but the larger man easily blocked all attempted blows. He described it as "nothing".

[17] He never saw the passengers exit the vehicle, but he suspected they did.

[18] One of the passengers, he believes, pulled his coat over his head and for a period of time he could not see anything.

[19] He fell to the ground and felt blows from all directions causing him to believe that the passengers were involved. He knew he had to regain his footing and quickly twisted around and stood up no longer hampered by the coat over his head.

[20] While he was on the ground he did not hear any conversation between his attackers. He is unable to identify who struck him or stabbed him. He is unaware as to when he was stabbed. In my opinion, it is likely that he was stabbed while he was on the ground.

[21] Immediately upon returning to his feet, Moore was focused on resuming his battle with J.D. No punches thrown by J.D. were of any significance. The only solid blow was a punch by Moore to the side of J.D.'s head near his ear.

[22] J.D. appeared to be staggered and pulled back touching his ear and he told Moore that he was bleeding. Upon noticing this, J.D. was angry and ran by Moore. He kicked the side door of Moore's van.

[23] The altercation was over.

[24] J.D. and the passengers returned to their vehicle.

[25] Moore backed up his vehicle to permit J.D.'s vehicle to exit the parking lot. Moore returned to his apartment unaware that he had been stabbed.

[26] After removing his coat, Moore noticed blood and then discovered that he had two stab wounds. He did not see the person stab him. He never saw anyone in possession of a knife or sharp object.

[27] He admitted that during the fight he was focused on J.D. and testified that J.D. did not stab him nor did he ever see him in possession of a knife or sharp object.

[28] Moore underwent surgery to address the injuries caused by the stabbing.

Charges Against R.P.G.

[29] I will deal firstly with the charges against R.P.G. I entered an acquittal on all charges against him on July 9th.

[30] The Crown concedes that there is insufficient evidence to find R.P.G. guilty of any of the offences alleged. I concur with that assessment. There is no evidence linking R.P.G. to the stolen vehicle. Moore was unable to identify him as being one of his assailants or even at the scene of the alleged incident.

Charges Against J.D.

[31] I will now deal with the charges against J.D.

Counts 2 and 3 (Possession of Stolen Vehicle and Mischief)

[32] Defence counsel did not make submissions with respect to counts 2 and 3.

[33] The evidence of the complainant is unchallenged that J.D. took a running kick at Moore's vehicle. Photographs of the damage were filed.

[34] The vehicle owned by Michelle Syring was stolen on March 10th, 2019 and found as abandoned five days later on March 15th, 2019. J.D. could not be excluded as the source of the male profile from a swab of blood stain on the vehicle's steering wheel. The evidence of recent possession and the fact that there is no reasonable explanation for the DNA results is persuasive.

[35] I am satisfied beyond a reasonable doubt as to the guilt of J.D. on counts 2 and 3.

Counts 1 and 4 (Aggravated Assault and Assault with Weapon)

[36] I will now deal with counts 1 and 4.

Law

[37] Pursuant to s. 268(1) of the Criminal Code:

"Every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant."

[38] The mens rea for aggravated assault is the mens rea for assault simpliciter plus the objective foresight of the risk of bodily harm.[1]

[39] In the case at bar it is alleged that J.D. is guilty as being part of a group that attacked Moore even though there is no evidence that he stabbed Moore or was aware of the sharp object or knife used or that he touched it or provided it to another person.

[40] Pursuant to s. 267(a) of the Criminal Code:

"Every person is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years or is guilty of an offence punishable on summary conviction who, in committing an assault,

(a) carries, uses or threatens to use a weapon or an imitation thereof"

[41] Section 21 of the Criminal Code deals with parties to an offence as follows:

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

(a) actually commits it;

(b) does or omits to do anything for the purpose of aiding any person to commit it; or

(c) abets any person in committing it.

(2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.

[42] Members of a group who participate together in a common act are jointly liable as principals pursuant to s. 21(1)(a) even though each has not performed every act which makes up the actus reus of the offence. "The question is whether there is an indication of common participation, not a common purpose."[2]

[43] Section 21(2) covers the situation where a common intention is formed with others to carry out an unlawful purpose and to assist each other in doing so. The common intention can be formed without a word spoken and at the spur of the moment. The common intention may be evidenced by virtue of the conduct of the participants. Where, however, the common intention is to commit the very crime charged, s. 21(2) has no application.

[44] In R. v. Atkinson,[3] the assault was commenced by the accused who was punching and hitting the complainant when at least one other person arrived and participated in the assault. The victim was kicked and someone began hitting him with a bar or pipe. The Court deemed that there was a mutual intention to pursue the unlawful purpose and assist each other. The accused denied he was part of a plan to beat up the victim, nor that he wielded a pipe alone or with others. He also denied encouraging or facilitating the commission of the offence.

[45] The Court convicted the accused of aggravated assault, while stating as follows:

"56 In the case at bar there is no requirement of objective foreseeability of wounding, maiming, disfiguring or endangering the life of James Peters, only of bodily harm to him. There is jurisprudence suggesting that in a fight where the victim is on the ground and outnumbered, any reasonable person would foresee bodily harm.

57 In R v. Ball, 2011 BCCA 11, 267 CCC (3d) 532 the Court notes that where a victim was swarmed, it did not matter if each attacker actually assaulted the victim, all attackers were held liable for the ultimate death.

58 In this case, the assault was commenced by Jake Atkinson pummelling and punching James Peters while he was curled up in a ball lying on the ground. James could not defend himself. He was unable to get up or to leave. This was a violent, aggressive application of force to a vulnerable person who had already been punched two times during the previous assault by Jake Atkinson. As he was being assaulted by Jake Atkinson he saw the black bar or pipe and then felt kicks and being hit with that object. The beating with the bar or pipe did not stop. This was all part of a continuous sequence of events which ultimately resulted in serious, permanent injuries to James Peters. I find beyond a reasonable doubt that Jake Atkinson ought to have known that bodily harm was a probable consequence. Bodily harm was objectively foreseeable by him."

Analysis

[46] The Crown submits that it has proven all of the elements of aggravated assault beyond a reasonable doubt. Effectively, aggravated assault is established when Moore was stabbed. The mens rea of the offence is made out when several persons attack one person since bodily harm is objectively foreseeable.

[47] Liability under s. 21 of the Criminal Code pre-supposes that a person is engaged in an "unlawful purpose."

[48] I have concluded that J.D. was not at any time in possession of a knife or sharp object, nor did he stab Moore or provide a weapon to anyone for that purpose. There is also no evidence that he was aware that someone was in possession of a knife or sharp object.

[49] There is no evidence that J.D. encouraged or facilitated the commission of the offence charged.

[50] There is no evidence of any agreement made with others to attack Moore.

[51] The Crown concedes that Moore assaulted J.D. when he sprayed brake fluid in his face.

[52] All of the cases submitted by the Crown involve a group of persons engaged in an unlawful purpose – an assault. In Atkinson,[4] the accused initially assaulted the victim and then others joined him in that purpose.

[53] J.D. was engaged, it is conceded, in lawful self-defence for a period of time.

[54] Moore was relentless in his attack. He was not even aware that he was wounded nor was he deterred by his injuries.

[55] The Crown bears the burden of proving beyond a reasonable doubt that J.D. was not acting in lawful self-defence for the duration of the altercation.

[56] The force used by J.D. was reasonable in the circumstances upon review of the factors enumerated in s. 34 of the Criminal Code.

[57] There was no evidence that he struck any significant blow to his aggressor.

[58] There was a significant mismatch in size of the combatants favouring Moore.

[59] The fight lasted a mere minute or two.

[60] There is a high probability that J.D. was handicapped once the brake fluid was sprayed in his eyes.

[61] The other participants who joined the fray may have been acting in defence of J.D. in view of his temporary disability.

[62] I agree with the Crown that once someone pulled out a knife "that crossed the line."

[63] Moore admitted having a utility knife in his pocket but denied brandishing it or using it. He admitted having used it in the past however in self-defence. I cannot reach any conclusion from the small cut to J.D.'s right thumb as the photographs filed were taken five days after the incident.

[64] There is no evidence indicating, when Moore went to the ground, that J.D. was involved in delivering any blows permitting me to conclude that he was no longer acting lawfully.

[65] The unlawful act of stabbing by someone who is unknown in this case, does not alter, in and of itself J.D.'s legal position as someone acting lawfully in self-defence.

[66] In order for the Crown to succeed it would require proof that J.D. deviated from lawful conduct. The evidence does not support that J.D. crossed the line.

[67] I have some concerns as to the credibility of Moore's evidence. Based on photographs filed of his vehicle, significant damage was done to the sliding door of the vehicle which he stated has not been repaired. Despite the considerable damage to his motor vehicle, he apparently never obtained the licence plate of J.D.'s vehicle and after the altercation, simply backed out his van to enable J.D. and his passengers to leave. He did not immediately call the police. He did so only after he discovered that he had been stabbed. I am concerned that he has not been fully forthcoming as to what transpired on March 10, 2019.

Verdict

[68] For the reasons given, J.D. is found not guilty on counts 1 and 4.

[69] As previously stated, he is found guilty on counts 2 and 3.

Released: July 13, 2020

Justice Ronald Marion

Footnotes

[1] R. v. Williams, 2003 SCC 41, 2003 S.C.C. 41, [2003] 2 S.C.R. 134 at para 22; R. v. Vang, 132 C.C.C. (3d) 32 (O.C.A.); R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3.

[2] R. v. Ball, 2011 CarswellBC 38 at para 25.

[3] R. v. Atkinson.

[4] R. v. Atkinson, supra.