ONTARIO COURT OF JUSTICE
DATE: 2025-06-16
COURT FILE No.: Toronto 4815 998 23 48109580
BETWEEN:
HIS MAJESTY THE KING
— AND —
JEAN-CLAUDE ROBITAILLE
Before Justice André Chamberlain
Heard on June 3 and 4, 2025
Reasons for Judgment released on June 16, 2025
Joshua Tupper — counsel for the Crown
André Tran — counsel for the defendant Jean-Claude Robitaille
Chamberlain J.:
[1]
Jean-Claude Robitaille faces charges of assault with a weapon and assault causing bodily harm. On Canada Day 2023, Mr. Robitaille was at Ashbridges Bay in Toronto. At one point, after playing soccer with a group unrelated to the complainant, Michelle Powell, Mr. Robitaille kicked a volleyball, striking Ms. Powell in the face. I must determine whether the kick that struck Ms. Powell was a careless act or an accident, or if it was a deliberate or reckless act, rendering his actions a criminal offence.
Facts Not in Issue
[2]
On Canada Day 2023, approximately 10 to 12 police officers worked in plain clothes at Ashbridges Bay, a popular beach and gathering spot in Toronto. They sat together, some on blankets and others on beach chairs. Their role that day was to monitor the situation during the Canada Day celebrations. In previous years, some individuals had been setting off fireworks at others, leading to injuries. The officers observed the crowd and were prepared to advise others if they spotted any issues. Michelle Powell, Paul Brykczynski, and Andrea Yepes were part of that group of officers.
[3]
The group sat south of the boardwalk, on the beach, east of a public washroom building. Mr. Robitaille joined a group playing soccer about 20 feet from where the police were stationed. He then left the soccer players and started walking towards the officers. He would have been unaware of their identities or the reason for their presence.
[4]
A volleyball, likely belonging to the group of officers, lay on the beach between the officers and the individuals playing soccer. Mr. Robitaille wound up and kicked the volleyball, striking Michelle Powell in the face. It is undisputed that the blow caused her bodily harm, given the evidence found in Exhibit 1, Ms. Powell’s medical records and her testimony at the trial.
The Testimony of the Witnesses
[5]
Michelle Powell sat in a lawn chair, facing west, while the rest of her group sat in a semicircle. She observed a family of about five people, all Black, playing soccer roughly 20 feet away. She noticed Mr. Robitaille trying to join their game, which appeared to be unwelcome by the group.
[6]
A few minutes later, she glanced to her right and saw Mr. Robitaille about 10 to 15 feet away, who appeared to be staring directly at her. He was alone, and she only noted his upper body. She did not see if a ball was nearby. She looked away for a moment, and when she turned back, she felt a hard impact on her face. At that time, Michelle Powell was wearing glasses.
[7]
After being hit, Ms. Powell placed her hands on her face and noticed blood on her hands: the glasses had cut her nose and face near her left eye. A stranger provided her with tissues to wipe away the blood, while a colleague accompanied her to a nearby ambulance for medical treatment. She was transported to North York General Hospital for further care.
[8]
Paul Brykczynski was part of that group of officers. He sat on a blanket on the west side of the group, facing south. He saw a cluster of soccer players and noticed Mr. Robitaille about 10 to 15 feet away, gazing intently past him. He watched as Mr. Robitaille wound up and kicked the ball hard in his direction. The ball flew past him about two to three feet above his head and struck Michelle Powell in the face. She was sitting about six feet away to the east of his position. He described the kick as a “really hard kick. It was a strong kick, not like a pass in a soccer game.” He also testified that, aside from the soccer game that had been happening earlier, behind where Mr. Robitaille had come from, he did not see anyone else participating in sports nearby.
[9]
When asked if Mr. Robitaille was with others while he kicked the ball, Mr. Brykczynski testified that he was apart from the people playing soccer. Mr. Brykczynski went to check on Michelle Powell, and after seeing Mr. Robitaille kick the ball, he began to follow him. He noted that Mr. Robitaille did not say anything but meandered slowly toward the public bathroom just west of where they were sitting. He watched him pick up a red and black bag from the sand, observed him attempt to engage others in conversation, and saw him sit on the boardwalk. Mr. Brykczynski stated that Mr. Robitaille appeared intoxicated at the time.
[10]
Paul Brykczynski then noticed two uniformed police officers nearby; he identified himself and instructed them to arrest Jean-Claude Robitaille.
[11]
Andrea Yepes was part of the team of plainclothes officers that day. She was sitting in a lawn chair, with Michelle Powell immediately to her left. She observed Mr. Robitaille’s unwelcome interaction with a group of soccer players nearby, who eventually shooed him away. She testified that as Mr. Robitaille walked away from the group, he moved in the direction of the officers toward a volleyball that had rolled away from their group. One of the officers had brought it along. She saw Mr. Robitaille look down at the ball and sweep his leg back as if he intended to kick it back to their group. She testified he was about 10 metres away at the time. Ms. Yepes briefly looked away, only to immediately see the bright colours of the ball fly by and felt the wind as it struck Michelle Powell’s face and glasses. She did not observe the kick itself.
[12]
Andrea Yepes glanced at Mr. Robitaille and made brief eye contact as he walked away. She ensured that the others were informed of who had kicked the ball while some began to follow him, and then she attended to Michelle Powell and brought her to an ambulance.
The Law
Criminal Code, RSC 1985, c C-46, s 265(1):
265 (1) A person commits an assault when
(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly.
[13]
Assault is a general intent offence. The intent for assault causing bodily harm is the same as that for assault. Intoxication is not a defence for general intent offences.
[14]
The mental element of assault, defined as the intentional application of force, encompasses recklessness: R. v. W.(D.J.), 2011 BCCA 522. In that case, the British Columbia Court of Appeal (BCCA) referenced its earlier decision in R. v. D.M., 2010 BCCA 162, 253 C.C.C. (3d) 493 with approval, stating that “intentionally” means not done by accident or through honest mistake. Similarly, in R. v. Dawydiuk, 2010 BCCA 162, the BCCA held that “intentionally” means not done by accident or through honest mistake.
[15]
The actus reus of the offence of assault causing bodily harm involves the intentional application of force against another person without their consent, resulting in bodily harm. The mens rea requires that the risk of bodily harm was either intended or was an objectively foreseeable consequence of the accused's conduct: R. v. Nurse, 1993 ONCA 14691, [1993] O.J. No. 336 (C.A.). To establish an assault, the Crown does not need to demonstrate that the accused intended to assault any specific person.
[16]
In other words, a defence of accident denies the existence of the necessary mens rea for the offence. The accused is not obligated to prove the defence of accident. (R. v. Whitehorne, 2005 NLPC 34553)
[17]
Determining whether the assault was accidental requires assessing the surrounding circumstances. In cases where circumstantial evidence suggests intent to apply force (e.g., an existing ‘angry’ state of mind; a precipitating event; evidence indicating intent to hit someone even if not the actual victim; or a motive to assault based on the circumstances of the interaction), the defence is unlikely to succeed. Conversely, a lack of circumstantial evidence from which such intent or recklessness can be inferred may lead to an acquittal.
Analysis
[18]
Non-consensual force was applied to Michelle Powell when a volleyball struck her in the face. The issue is whether Jean-Claude Robitaille intentionally or recklessly used force, and whether the risk of bodily harm was intended or was an objectively foreseeable consequence of that force. If the force was not deliberate or reckless, but rather accidental or careless, reasonable doubt may arise, as the accused did not possess the necessary mens rea.
[19]
Jean-Claude Robitaille attended Canada Day celebrations at Ashbridges Bay. The Toronto Police Service deployed officers, some in plain clothes, to monitor the crowd, as some participants had aimed fireworks at individuals in previous years. The fact that the victim of this encounter was a police officer in plain clothes was irrelevant to the issues presented at trial.
[20]
There was no evidence at trial suggesting that Mr. Robitaille had any animus toward the victim of this incident. Notwithstanding that Michelle Powell, who is Black herself, observed Mr. Robitaille trying to insert himself into a soccer game among a group of Black individuals and was rebuffed, there was no indication that Mr. Robitaille was in any way linking his rejection from playing with that group to Michelle Powell.
[21]
No one suggested that he was observing Michelle Powell during his interactions with that group, which might have led him to feel she was somehow connected to that event or group. No one testified that he could have been frustrated by the interaction with the group playing soccer, which could have caused him to act violently by kicking the volleyball towards Michelle Powell in that manner. To claim otherwise would be mere speculation. There is no evidence of motive in his actions.
[22]
What we have is a man who approaches a loose volleyball on the ground and kicks it in the general direction of a group of people. However, one thing is clear: he kicks it hard, and one could even say very hard. He is not kicking it toward people who are playing soccer or engaging in any other sport. Whether he knows that the ball belongs to them is irrelevant. However, the force he used to kick the ball toward a group of people not playing sports or thinking he might do so is relevant because the force with which the ball was directed at the group is significant.
[23]
Paul Brykczynski watched as Jean-Claude Robitaille kicked the ball, which he described as a “really hard kick. It was a strong kick, not like a pass in a soccer game.” The force with which it struck Michelle Powell was enough to cause considerable injury, so significant that almost two years later, she is still coping with the effects of the concussion. Andrea Yepes not only saw how quickly the ball flew past her but also felt the wind rushing by her head.
[24]
The fact that this was not in the context of a soccer game is also significant. One might argue that if he were in the midst of playing a soccer game with others and kicked the ball in that manner, striking someone in the head and causing these injuries, it would, in all likelihood, not be intentional; rather, it would be careless or an accident. However, this was not a game, and Jean-Claude Robitaille was not returning the ball to players engaged in soccer, nor were they looking at or paying attention to the ball so they could resume their game. Instead, these were people sitting around on the beach, observing the other beachgoers and the crowds in general.
[25]
The distance between Jean-Claude Robitaille and the victim in this incident is also a factor. He was not returning a ball to a group of people so far away that he had to kick it with enough force to travel dozens of metres. Two witnesses, Powell and Brykczynski, described him as being 10 to 15 feet away. Yepes testified he was perhaps 10 metres away. He was looking toward a large group sitting together in chairs and on blankets. Although they all vaguely noted that there were beach volleyball courts nearby, no one testified that other groups were engaging in sports near where this group was seated, except for the soccer players in the opposite direction of where the kick went.
[26]
Mr. Robitaille decided to kick the volleyball forcefully in their direction, as previously described. This was not a reflexive action. He was walking away from a group of people with whom he had just attempted to play soccer. As he moved away from that group and toward another gathering of individuals seated in a semicircle on the beach, he encountered a stationary volleyball nestled in the sand and intentionally chose to kick it. He kicked it hard toward a cluster of 10 to 12 people sitting together, located approximately 10 feet or 10 metres away from him.
[27]
The lack of circumstantial evidence to infer intent or recklessness in his actions, which could otherwise establish reasonable doubt, is countered by the force that Jean-Claude Robitaille applied in kicking the ball and the proximity of the group of 10 to 12 people toward whom he directed his kick on Canada Day 2023. The powerful kick of a volleyball in the general direction of a group of people from a short distance can only lead one to conclude that the risk of bodily harm was either intended or was an objectively foreseeable consequence of his conduct.
[28]
That Jean-Claude Robitaille may have been intoxicated at the time seems plausible, as described by Brykczynski when he observed Mr. Robitaille walking away, or based on his behaviour in the body-worn camera footage in Exhibit 3. While this may offer some insight into his lack of judgment that day, it does not excuse his behaviour, as the assaults in this case constitute a general intent offence.
Released: June 16, 2025
Signed: Justice André Chamberlain