Ontario Superior Court of Justice

COURT FILE NO.: CR-12-00085
DATE: 20130416

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen

– and –

Dean Mark Bonnington

Defendant

Michael Flosman, for the Crown

Dale Ives, for the Defendant

HEARD: January 28 and 30, 2013

REASONS FOR JUDGMENT

McKelvey j.

Introduction

[1] The defendant is charged with aggravated assault arising out of an incident which occurred on July 2, 2011. On that date Mr. Bonnington had driven his boat, which has been described as a 32-foot Fountain to Big Chief Island, which is located in Lake Couchiching. The area where Mr. Bonnington moored was a very popular area because the water was shallow and it had a sandy bottom. This was also the Saturday of the July long weekend. There were hundreds of boats anchored in the area, many of them tied together.

[2] At around 6:00 or 6:30 p.m. Mr. Bonnington proceeded to leave Big Chief Island in his boat. He started his engines and gradually started to make his way through the other boats towards the open water. As he did so, he caught the attention of other boaters in the area. In particular the complainant, David Gibbons, was concerned about the fact that Mr. Bonnington was not “walking” his boat out to the open water. He was concerned that the propeller of Mr. Bonnington’s boat would foul the anchor lines which extended from the back of his boat. Words were exchanged between Mr. Gibbons and Mr. Bonnington, as well as some of the other people on the boat where Mr. Gibbons was located.

[3] Mr. Bonnington continued to proceed towards the open water. However, the verbal exchanges continued. Just before proceeding out to the open water, Mr. Bonnington stopped his boat, got into the water, and walked over to the back of the boat where Mr. Gibbons was located. He then got onto a swimming platform located on the back of the boat where Mr. Gibbons was located. An incident ensued. As a result of this incident, Mr. Gibbons suffered a serious injury to his left eye. He was subsequently taken to hospital where he underwent surgery. While doctors were able to preserve the eyeball itself, Mr. Gibbons lost the sight in his left eye. He has continued to require additional surgeries and medical treatment up to the present time.

[4] The Crown alleges in this case that the injury to Mr. Gibbons’ left eye was caused as a result of a punch or hit by Mr. Bonnington. Mr. Bonnington denies that he made any physical contact with Mr. Gibbons, and further asserts that his decision to get on the boat where Mr. Gibbons was located was at the invitation of Mr. Gibbons. He therefore asserts a defence based on consent as well.

Agreed Facts

[5] Both counsel at trial agreed that identity of the defendant is not an issue. In addition, both parties agreed that Mr. Gibbons suffered an injury to his left eye, and has lost the vision in that eye. However, there was no agreement that the injury to the eye was caused by the actions of the defendant.

Elements of the Offence

[6] Section 265(1) of the Criminal Code sets out the elements for an assault. The relevant provisions provides as follows:

A person commits an assault when

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

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

[7] Section 268(1) of the Criminal Code provides as follows:

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

[8] In the context of this case, in order to establish guilt, the Crown must prove beyond a reasonable doubt:

(a) That Mr. Bonnington intentionally applied force against Mr. Gibbons;

(b) That this force was not consensual;

(c) If there was consent it was voided because the defendant intended to cause and did cause the complainant serious bodily harm;

(d) That the wound suffered by the complainant (which was admitted to be a wound for purposes of section 268(1)) was caused by the defendant; and

(e) That in causing the injury that the defendant would objectively have foreseen the risk of bodily injury to the complainant as a result of his actions. It is not necessary that there be a specific intent to wound or maim or disfigure.

Analysis of the Evidence

[9] A total of seven witnesses were called at trial. The following four witnesses were called by the Crown:

(1) David Gibbons – the complainant;

(2) Roxanne Pearce – Mr. Gibbons’ girlfriend, who was also on the boat where the incident occurred;

(3) Lora-Lee Fitzgerald – the common law spouse of George Pond, who was a friend of Mr. Gibbons, and who owned the boat on which the incident occurred; and

(4) George Pond – a friend of Mr. Gibbons, and who was also involved in the incident with the defendant.

[10] The defence called three witnesses as follows:

(1) Dean Bonnington – the defendant;

(2) Sydney Marsh – a friend and employee of the defendant, who was at Big Chief Island that afternoon, and who was a witness to the incident; and

(3) Kenneth Griffiths – a friend of the defendant’s who was at Big Chief Island that afternoon, and who also witnessed the incident.

[11] Mr. Gibbons testified that he and a number of friends went to Big Chief Island on Friday evening. He and his girlfriend, Roxanne Pearce, slept over on his boat, which was a small 21-foot Doral. George Pond and Lora-Lee Fitzgerald accompanied them in their own boat, as well as another couple, Graham and Jennifer Randall. All three of their boats were tied together so that they could easily walk across from one boat to the next. Mr. Gibbons agreed that he had several beer that day, but denied that he was in any way impaired.

[12] That evening Mr. Gibbons saw Mr. Bonnington starting to drive through the water immediately behind their boats. He was concerned about the possibility that Mr. Bonnington’s boat would get tangled up in one of the anchor lines, and Mr. Gibbons told him to turn the engine off, that he should walk his boat through. According to Mr. Gibbons, Mr. Bonnington responded that he knew what he was doing and continued on. Later, Mr. Gibbons saw Mr. Bonnington’s boat hit a Sea-Doo. He stated that everyone was yelling at Mr. Bonnington. Mr. Gibbons tapped his finger to the temple of his head as a sign that Mr. Bonnington was “not too smart”. By this point, Mr. Bonnington was about 40 feet away. Mr. Gibbons stated that he then went back to sit down for dinner. A couple of minutes later, out of the blue, he was struck by Mr. Bonnington. He stated that he saw something shiny as the fist came towards him. He denied that he saw Mr. Bonnington coming towards him. He also denied that he was given any warning that Mr. Bonnington was trying to get on the boat. He further denied that he used any profane language or that he ever invited Mr. Bonnington to come over onto the boat he was on. Finally, he denied making any comments about the women who were in Mr. Bonnington’s boat.

[13] Mr. Gibbons stated that after he was struck he ended up on the floor of the boat. His eye was bleeding. Someone gave him something to put on the eye, and he was subsequently taken to hospital.

[14] Mr. Bonnington testified that he arrived at Big Chief Island at around 4:00 p.m. on the afternoon of July 2nd. He was with his mother, two daughters and son. While at the island he left his son at the island because he recently had broken his leg and being in the boat was hurting him. In addition, he met up with his girlfriend Courtney at the island.

[15] Mr. Bonnington had one beer while the group was at Big Chief. When he went to leave the island, two friends gave him a push to assist him in getting out. He started his engines and started to move by a series of boats. As he did this a number of boaters were telling him to watch for their anchors. One person in particular was very vocal. This was Mr. Gibbons who he told that he knew what he was doing. Unfortunately, however, Mr. Bonnington’s boat shortly afterwards got caught on one of the anchor lines. Mr. Gibbons reminded him that he had told him he was going to get caught up. Mr. Bonnington got out and cleared the ropes and continued on.

[16] Mr. Bonnington testified that Mr. Gibbons never stopped talking and was, “out of control”. He was using profane language. Mr. Bonnington denied that he continued any conversation with Mr. Gibbons, but stated that it was not long before his daughters were starting to cry. Mr. Gibbons continued to yell at him and later on he hit a Sea-Doo as he was getting close to the open water. Mr. Gibbons continued to yell at him to turn the engines off and to use profane language. At one point Mr. Bonnington’s girlfriend, Courtney, yelled back to Mr. Gibbons and Mr. Gibbons responded by yelling at her using profane language. Mr. Bonnington recalled that Mr. Gibbons called him a “retard” and kept tapping his head, suggesting he was stupid. Mr. Gibbons yelled over to him to “come here”. At this point with his kids screaming Mr. Bonnington responded, “I’m on my way”.

[17] Mr. Bonnington testified that he then walked to the back of the boat where Mr. Gibbons was located. He stated there were two or three men on the back of the boat. According to Mr. Bonnington Mr. Gibbons encouraged him to come up. He then got on the swim platform at the end of Mr. Gibbons’ boat. At that point Mr. Gibbons and his male friend pushed him back into the water. Mr. Gibbons kept saying, “come on”. He laughed at Mr. Bonnington in the water. Mr. Bonnington then got back up on the swim platform. He stated that he was pushed back into the water and as he went backwards he raised his arms to try and grab onto something. He stated he was not able to grab anything or touch anyone and that he fell back into the water. He then saw Mr. Gibbons in the water. He didn’t see any injury on Mr. Gibbons at that point, and he decided to simply walk away. He returned to his boat and left.

[18] There is good reason to doubt the reliability of Mr. Gibbons’ evidence. His recollection as to how the incident occurred was not supported by any of the other witnesses at trial. For example, no witness supported Mr. Gibbons’ evidence that he was seated at the back of the boat when he was “sucker punched” by Mr. Bonnington. All of the other witnesses recalled that Mr. Bonnington initially got up on to the swim platform of the boat and was pushed back by the men in the boat, including Mr. Gibbons.

[19] The most credible evidence, in my view, was given by Lora-Lee Fitzgerald. She owns the boat on which the incident occurred. After the incident she called the police and prepared a diagram which showed the location of the boats and the path taken by Mr. Bonnington as he headed towards the open water. It is apparent to me that she had a detailed recollection of the events and recognized the need to have a diagram to record relevant information for a later time. In addition, it was also apparent to me that in giving her evidence Ms. Fitzgerald was not hesitant to give evidence which reflected very negatively on the conduct of Mr. Gibbons. She did not appear to favour Mr. Gibbons in giving her evidence.

[20] Ms. Fitzgerald testified that she was preparing dinner on the deck of the boat as events unfolded.

[21] Ms. Fitzgerald stated that as the front of Mr. Bonnington’s boat was coming across the back of the boats where they were anchored, both Mr. Gibbons and her common law husband, George Pond, were concerned about the possibility that Mr. Bonnington was going to get caught up in the anchors running from the stern of their boats. As Mr. Bonnington proceeded he got caught up on the anchor line from Mr. Gibbons’ boat. She recalled Mr. Gibbons telling Mr. Bonnington to shut the engines off because he was going to cut their lines. Mr. Bonnington responded that he knew what he was doing.

[22] Ms. Fitzgerald commented that the voices of both Mr. Gibbons and Mr. Pond towards Mr. Bonnington were quite “boisterous”. Voices were raised over the noise of the engines on Mr. Bonnington’s boat.

[23] Mr. Bonnington was able to get his boat off the anchor lines, but subsequently got caught up on some other lines. During this period of time Mr. Gibbons was yelling at Mr. Bonnington to shut his motors off and Mr. Bonnington was yelling back that he knew what he was doing. It was apparent to Ms. Fitzgerald that tempers were escalating. There was lots of profane language being used and she could tell that Mr. Gibbons was very irritated. Both Mr. Gibbons and Mr. Bonnington were starting to swear at each other. She didn’t recall any specific gestures, but simply lots of yelling.

[24] Just as Mr. Bonnington was about to get to the open water he stopped his boat, jumped off, and ran through the water to the back of her boat. As Mr. Bonnington was travelling towards the back of her boat he yelled up that he was, “going to f....ing kill that guy”.

[25] When he got to the back of the boat Mr. Gibbons, Mr. Pond, and Mr. Bonnington were all swearing at each other. Her common law husband, Mr. Pond, told Mr. Bonnington that he was not going to get on their boat. However, Mr. Bonnington jumped up onto the swim platform at the back of the boat and Mr. Pond and possibly Mr. Gibbons pushed him off the swim platform back into the water.

[26] At this point Mr. Bonnington got right back up onto the swim platform. As he came up onto this platform he had his fist ready and he then proceeded to hit Mr. Gibbons in the eye area. The force of the blow knocked Mr. Gibbons out of the boat into the water. At this point Ms. Fitzgerald recalled that some people in the water were holding Mr. Bonnington back. There was blood everywhere and Mr. Bonnington was yelling. The girls on Mr. Bonnington’s boat were crying hysterically. Shortly afterwards Mr. Bonnington calmed down and went back to his boat. Shortly thereafter Ms. Fitzgerald called the police.

[27] Ms. Fitzgerald denied that Mr. Gibbons ever asked Mr. Bonnington to come on the boat or challenged him to a fight.

[28] Ms. Fitzgerald was extensively cross examined on her evidence that she saw Mr. Bonnington punch Mr. Gibbons. She was referred to her evidence at the preliminary inquiry. She was specifically confronted with her evidence at pages 70/71 as follows:

Q: So, you don’t actually see what causes the injury to Mr. Gibbons’ eye?

A: Well, I saw – when he came up on the boat, I saw the – I saw a punch and I know they went and – I know – that’s all I know. They came up. He hit him, they went in the water, there was…

Q: Okay.

A: …all of a sudden just hundreds of people came.

Q: Okay, punching is a different description than grabbing, which is what you said at first.

A: Yeah, I…

Q: Was it a...a grab like this or was it a one-handed punch?

A: No, he came up over the boat and went like that and grabbed him and off they went down into the water.

MR. FLOSMAN: Okay, sorry.

MS. IVES: That’s got to be described for the record.

THE WITNESS: Oh, okay.

MS. IVES: Q: So you…you…you sort of – you brought your right hand up?

A: Yeah, or – well, I’m backwards to it, I guess, ‘cause he’s in the water and he came up and I guess with his left hand swung. I don’t really remember the full details, it happened so fast.

Q: Okay. So you…

A: I don’t know if it was his left hand or his right hand used to hit him.

Q: So, you see one of his hands come up?

A: Come up.

Q: Okay.

A: And catch Dave right in the face.

Q: Okay. Do you – can you tell whether that’s a grab or whether that’s a punch?

A: Can’t.

MR. FLOSMAN: I’m sorry, what was the answer?

THE WITNESS: I’m pretty sure – actually, I’m going to – my – I…I said I can’t, but I know that it was a punch ‘cause there was blood everywhere.

MS. IVES: Q: Okay, but you didn’t – you can’t tell from what you say, you’re looking…

A: Right.

Q: …at the consequences afterwards and drawing a conclusion.

A: Hmm-hmm.

Q: Right?

A: Right.

[29] While there may be some issue as to whether Mr. Bonnington was using an open or closed fist, the evidence of Ms. Fitzgerald at the preliminary inquiry is consistent with her evidence at trial that she saw Mr. Bonnington strike Mr. Gibbons in the face.

[30] The evidence of Ms. Fitzgerald with respect to the incident at the back of the boat was supported by George Pond, Ms. Fitzgerald’s common law husband. He testified that he told Mr. Bonnington that he was not getting on the boat and that subsequently Mr. Bonnington got on the swimming platform. He stated that he and Mr. Gibbons then pushed Mr. Bonnington back into the water. Mr. Bonnington then jumped right back up on the swimming platform and proceeded to punch Mr. Gibbons in the face. Mr. Pond was confronted with his evidence at the preliminary inquiry on cross examination. In his evidence at the preliminary inquiry he acknowledged that he did not actually see the blow which injured Mr. Gibbons. In his evidence at trial, Mr. Pond stated that there was definitely a swing taken by Mr. Bonnington, but that he didn’t see the actual contact with Mr. Gibbons’ face.

[31] The evidence of Mr. Bonnington about the circumstances of the incident were supported by two witnesses, Sidney Marsh and Kenneth Griffiths. Mr. Marsh described how Mr. Gibbons was swearing constantly at Mr. Bonnington. He was located in the water behind the boat where the incident occurred. He never heard Mr. Bonnington shout out that he was going to, “kill the guy” nor did he see Mr. Bonnington punch anyone in the face. He did observe Mr. Bonnington getting on to the swimming platform initially when he was pushed off. He stated that at this point the men on the boat were laughing at Mr. Bonnington. Mr. Bonnington then was trying to get back up on to the platform and was pushed back into the water.

[32] In his evidence Mr. Marsh suggested that as he saw Mr. Bonnington walk over to the back of the boat he believed that Mr. Bonnington just wanted to talk to Mr. Gibbons and that Mr. Bonnington was, “too cool to fight”. However, also in his evidence he acknowledged that he thought there was going to be “trouble”. He stated that he heard Mr. Gibbons calling Mr. Bonnington over to his boat for a fight and that anyone who acts like that was clearly looking for trouble. When asked as to why he did not go over to assist Mr. Bonnington he stated, “My fighting days are over”. This leads me to believe that Mr. Marsh was less than candid when he suggested that he thought Mr. Bonnington just wanted to talk to Mr. Gibbons. In addition, Mr. Marsh was less than candid about his relationship with Mr. Bonnington. When questioned about his relationship with Mr. Bonnington he stated that he had been a friend of Mr. Bonnington for about 10 years. However, in the evidence of Mr. Griffiths he stated that Mr. Marsh is employed by Mr. Bonnington in his business. In my view this is a significant omission which casts significant doubt on the credibility of Mr. Marsh.

[33] Mr. Griffiths is also a friend of Mr. Bonnington and was also at Big Chief Island at the time of the incident. Mr. Griffiths was behind Mr. Bonnington in the water and off to his left.

[34] Mr. Griffiths testified that he saw Mr. Bonnington being abused verbally by Mr. Gibbons and that Mr. Gibbons was telling Mr. Bonnington to “come here”. He also saw Mr. Gibbons make a gesture towards Mr. Bonnington, suggesting that Mr. Bonnington was “nuts”.

[35] Mr. Griffiths observed Mr. Bonnington get on to the swim platform at the back of the boat and was pushed off. He then went back onto the swim platform and was pushed off again. He stated that he never saw Mr. Bonnington make contact with anyone on the boat.

[36] Mr. Griffiths didn’t think that there was a fight on the back of the boat. He described it as “horse play”. Later in cross examination he stated that he wasn’t expecting a fight, but wanted to “watch the show”. This evidence seemed to be at odds with his other evidence which talked about Mr. Bonnington and the men on the boat talking angrily and the insults which he said were being made towards Mr. Bonnington, and how Mr. Bonnington looked upset.

[37] Mr. Griffiths also testified in cross examination that as Mr. Bonnington got on to the swim platform for the second time he tried to “lunge” towards the man on the back of the boat. He lunged with his arms outstretched towards the men on the boat. Nevertheless he stated that he did not see Mr. Bonnington’s body come into contact with the men on the back of the boat. Mr. Griffiths thought that Mr. Bonnington was lunging out to push the men at the back of the boat back. He also agreed that as the men at the back of the boat were trying to push Mr. Bonnington back into the water, Mr. Bonnington was in close physical proximity to the men at the back of the boat.

Discussion

[38] In considering the evidence in this case I recognize that because the defence has led evidence the law as set out in R. v. W.(D), (1991), 1991 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.) applies. The principles set out in this case were also recently reviewed in the Ontario Court of Appeal decision in R. v. B.D., 2011 ONCA 51. Thus, in considering the elements of the offence I must take into account in my consideration of the evidence that if I accept the evidence of the accused and/or his witnesses with respect to the essential elements of the offence, I must acquit. Secondly, even if I do not accept the evidence of the accused and/or his witnesses on the essential elements, but am left in a reasonable doubt, again I must acquit. Third, even if I am not left in doubt by the evidence of the accused and/or his witnesses I must still ask myself whether on the basis of the evidence which I do accept I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[39] I do not accept the defence evidence with respect to the essential elements of this charge nor am I left with a reasonable doubt on account of that evidence. Mr. Bonnington in his evidence at trial stated that when he left his boat to go to the back of the boat where Mr. Gibbons was located he was responding to an invitation to come over there by Mr. Gibbons and that his plan was simply to have a face to face conversation with Mr. Gibbons, and ask him what his problem was. He denied that he wanted revenge or was planning a physical assault. However, if this evidence were accurate it does not explain why he stopped his boat just before he entered open water and got out to go back to Mr. Gibbons’ boat. Any conversation he wanted to have with Mr. Gibbons could have occurred from the back of his boat. Or, having chosen to get into the water he could have had a conversation with Mr. Gibbons standing in the water some distance from Mr. Gibbons’ boat. Instead, Mr. Bonnington got up onto the swim platform where he would be in close physical proximity to Mr. Gibbons. It is a logical and clear inference and one that I draw that Mr. Bonnington was interested in more than just a conversation with Mr. Gibbons and intended to physically confront him.

[40] The fact that Mr. Gibbons stopped his boat just as he was about to enter open water also means that he could simply have left the scene without suffering any further verbal abuse from Mr. Gibbons. I find that he made a conscious decision to go over to the back of Mr. Gibbons’ boat to confront him.

[41] Mr. Bonnington asserts that he was invited by Mr. Gibbons to come onto the back of the boat. However, when he stepped onto the swim platform he was pushed off by Mr. Gibbons and Mr. Pond. There can be no doubt at this point that Mr. Bonnington was not welcome on the back of the boat and there was no consent or desire on the part of Mr. Gibbons or the men on the boat to engage in a physical confrontation. When Mr. Bonnington stepped back onto the swim platform for the second time there could not have been any misunderstanding on this point.

[42] Mr. Bonnington denies that he struck Mr. Gibbons in the eye. I reject his evidence in this regard. The inference I draw is that Mr. Bonnington became angry with the insults that were being thrown at him. The reason for getting out of his boat and going towards Mr. Gibbons’ boat was to have a physical confrontation with Mr. Gibbons. His actions in climbing onto the back of the boat onto the swim platform clearly demonstrate his intention to have a physical confrontation. He was in close physical proximity to Mr. Gibbons and even the evidence of Mr. Griffiths referred to Mr. Bonnington “lunging” towards the men at the back of the boat.

[43] I therefore turn to the question of whether on the basis of the evidence which I do accept am I convinced beyond a reasonable doubt about the guilt of the defendant. In this regard I do not place any significant weight on the evidence of Mr. Gibbons for the reasons outlined earlier in my reasons.

[44] For the reasons outlined earlier I do accept the evidence of Ms. Fitzgerald and Mr. Pond as to how the injury occurred. This evidence is consistent with the physical actions of Mr. Bonnington, as well as the eye injury identified immediately after the incident where Mr. Bonnington climbed onto the swimming platform for the second time.

[45] I find beyond a reasonable doubt, based on this evidence, that Mr. Bonnington did intentionally apply force to Mr. Gibbons’ face after he climbed back onto the swimming platform for the second occasion. Mr. Bonnington took a swing towards Mr. Gibbons’ face and either punched or slapped him intentionally in a forceful manner. I find beyond a reasonable doubt that the application of such force would objectively carry with it the risk of bodily harm, which would be consistent with what I believe to have been Mr. Bonnington’s intention at the time.

[46] I find beyond a reasonable doubt that Mr. Gibbons did not consent to participate in a physical altercation or fight. This is not consistent with the attempts to keep Mr. Bonnington off the boat. At a minimum, Mr. Bonnington knew after he was thrown off the boat on the first occasion that his presence on the boat was not welcome.

[47] Finally, I find beyond a reasonable doubt that the damage to Mr. Gibbons’ eye was caused as a result of the physical contact made by Mr. Bonnington. This conclusion flows directly from the fact that the injury was observed immediately after Mr. Gibbons was struck by Mr. Bonnington.

Conclusion

[48] I therefore conclude that the Crown has proved beyond a reasonable doubt that Mr. Bonnington is guilty of aggravated assault as a result of this incident.

Justice M. McKelvey

Released: April 16, 2013