R. v. Atkinson, 2015 ONSC 4037

CITATION: R. v. Atkinson, 2015 ONSC 4037

OTTAWA COURT FILE NO.: 12-A13167

DATE: 2015/06/24

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Applicant

– and –

JOSEPH ATKINSON

Defendant

David Elhadad, for the Crown

Jeffrey Langevin, for the Defendant

HEARD AT OTTAWA: February 9, 10, 11, 12, 17 & 18, 2015

REASONS FOR JUDGMENT

BLISHEN J.

INTRODUCTION

[1] Joseph Atkinson is charged with committing an aggravated assault on James Peters on December 10, 2011, by wounding; maiming; disfiguring; or endangering his life, contrary to section 268 (2) of the Criminal Code of Canada.

[2] Joseph Atkinson, also known as Jake Atkinson, pled not guilty and the matter proceeded to trial. The Crown called 10 witnesses and the defence called one witness. The accused, Jake Atkinson, did not testify.

EVIDENCE

Assaults

[3] In the early morning hours of December 10, 2011, 19 year old James Peters and his friends: Justin St. Jean, Nour Ayach and Phil Gauthier were drinking at the home of their mutual friend, Dillon Meiller. After spending about an hour at Dillon’s, the five friends decided to walk over to a local bar, Tailgators, for last call. They arrived at approximately 1:00 a.m. All but Phil Gauthier entered the bar. Phil left the group and went to Pizza Pizza in the same mall. James, Nour, Justin and Dillon sat together at the bar and over the next hour consumed a couple of shots of tequila or vodka. James Peters and all of his friends except Nour Ayach testified.

[4] While sitting at the bar, Justin St. Jean noticed a large group at tables behind them. Jake Atkinson, with whom Justin had gone to school, was sitting at one of the tables. James Peters also noticed Jake, who he knew from the neighbourhood, at the tables behind them. James also recognized his friend Chris Tremblay’s older brother, Matt Tremblay sitting at the next table over from Jake Atkinson.

[5] Jake Atkinson or someone from his group called Justin St. Jean over to the tables. Justin testified that when he went over, Jake Atkinson, who was at a table with seven or eight other people began calling him names such as “faggot, retard”. Justin did not respond and Jake put him into a headlock. Justin indicated he did not want to be bothered and was upset that night as his mother was very ill and about to die. He said “fuck off” and left the tables.

[6] When Justin came back to his friends at the bar, he had a bad feeling, discussed the situation with the group and they decided to leave, according to Justin “for our own best interests”.

[7] James Peters testified that after speaking to Justin, he felt uneasy and anxious so left Tailgator’s with Dillon, Nour and Justin. They met up with Phil Gauthier on the steps of the bar and began walking across the parking lot of the mall at approximately 2:00 a.m. As they were walking, two young men, who Justin St. Jean testified had been at Jake’s table, stopped the group and asked for a lighter for a cigarette. They lit the cigarette, thought nothing much of it and continued to walk. When they were approximately 75% through the parking lot, they heard yelling and noticed a group of six to eight white males following behind them. The evidence as to exactly what was being yelled was inconsistent but James Peters, Dillon Meiller, Justin St. Jean and Phil Gauthier testified they were scared and thought there would be a fight. They ran and were chased by the group. None of the four witnesses could identify who was chasing them. As the group of 6 – 8 people chased James and his friends, some continued to yell and threaten. James Peters recalled they were saying things such as “you guys better run”, “hey we’re going to fuck you up”. James Peters and his friends ran across the rest of the parking lot and through a corridor or alley from the strip mall to Norice Street and split up.

[8] After leaving the alley, James Peters hid in a backyard on Norice Street. He testified he was scared and did not know what was happening or why they had been chased. After 10 to 15 minutes, James left the backyard on to the street to see what was happening. He noticed two people back by the alley or corridor and so decided to walk in the opposite direction, west on Norice. At the intersection of Norice and Perry Street he almost bumped into the accused, Jake Atkinson, who was walking north on Perry. James also noticed one or two others further down Perry Street. James testified he made brief eye contact with Jake Atkinson, put his head down and began to walk by. Jake stated “hey, where the fuck do you think you’re going?” James replied “I’m going to Dillon’s”.

[9] At that point James testified Jake grabbed his left shoulder, spun him around and struck him in the face. James asked, “why are you doing this?” at which point Jake punched him in the face again more than once; James punched Jake on the left side of his head and ran.

[10] Jake Atkinson admitted this first incident constitutes an assault pursuant to s. 266 of the Criminal Code.

[11] As he was running, James stumbled, looked back and saw Jake chasing him. He felt the hood of his jacket being grabbed and he was pulled to the ground by Jake who began to punch and hit him. James rolled into the fetal position on the ground trying to protect himself. James testified this was not like wrestling as Jake was much bigger and James could not get any shots in. From James’ perspective this was a beating. He was screaming and yelling for help as he was being hit by Jake Atkinson.

[12] At the same time James briefly saw a black object that looked like a pole or a pipe approximately one to two feet long. He felt kicks and someone began to hit him with the hard object as he was lying on the ground.

[13] James was hit a number of times mostly on the face, head, legs, and hands with that object. He was unaware as to who was beating him with the pipe, but he was aware there were two or more people present. At the end of the beating, James could not see anything as his eyes were swollen shut but he heard people talking and someone said “let’s go, let’s go, we got him” while another person kept hitting him. James thought the beating lasted between 1 and five minutes and then they left.

[14] James tried to take out a cell phone to call for help but it had been destroyed. He crawled to one house on Norice Street, got no response from the homeowner and made his way to a second house. He rang the doorbell and the homeowner called 911. At that point, James was bleeding profusely, removed his t-shirt and tied it around his head.

[15] Constable Krista Mallon and Constable Paul Baechler testified that at approximately 2:20 a.m. they arrived at the Norice Street address and found Mr. Peters slumped in a corner of the porch, bare chested with his t-shirt applied to his head. He was completely covered in blood and had a large gash on his forehead and the right side of his head closer to his ear. He had other injuries, particularly to his mouth and hands. Cst. Mallon spoke to him and although he was groggy and in a lot of pain, he was able to answer questions and made sense. He told Cst. Mallon his name and phone number and briefly what happened that evening. Cst. Mallon clearly remembered James mentioning that one member of the group chasing them through the parking lot, could have been Jake Atkinson. It was obvious to both Cst. Mallon and Cst. Baechler that James was seriously injured. An ambulance was called and he was transported immediately to the hospital.

[16] After being triaged at the hospital, both officers spoke to James Peters again. He provided them with the names and phone numbers of all of his friends but left out Phil Gauthier. He also indicated his belief that one of the males chasing his group was Jake Atkinson. He said he had been struck with a bar or pipe and described it to the police.

Injuries

[17] James Peters suffered significant injuries as documented in the photo books filed as Exhibits 1 and 4 and the medical records filed as Exhibit 5. He suffered multiple lacerations on the right side of his head, three gashes requiring stitches and a laceration between his eyebrows requiring stitches. He had marked swelling to his right eye which was swollen shut. There was permanent injury to his right eye, ultimately requiring lens replacement surgery and he now needs to wear eye glasses.

[18] A CT scan of the head revealed multiple facial fractures involving the orbits, the sinuses and lamina papyracea in continuity with the frontal sinus fractures. This was described by the doctor in the medical records as an “extensive facial smash injury”. There was no intracranial injury. In addition to the facial and head injuries James had fractures on both his left and right hands which were also scraped and bruised. Surgery was not required but his fingers were splinted. There were bruises noted on the back of his head and his lower back. The photographs reveal other bruising on his right wrist and marks on one of his legs. Finally, James had numerous teeth fractured and knocked out. He required surgery to remove three teeth and to implant a partial plate to replace a number of his front teeth.

[19] It is admitted and I find beyond a reasonable doubt these injuries amount to wounding and maiming, as outlined in the indictment, sufficient for aggravated assault pursuant to s. 268(1) of the Criminal Code. James was permanently disabled by the brutal assault committed upon him on December 10, 2011. He has scarring to his head; must wear eye glasses; and has a permanent plate to replace a number of his teeth.

After the Fact Conduct

[20] Jake Atkinson, admits that in the early morning hours of December 10, 2011, he went to his girlfriend Jessica Dubé’s home where she and her friends Leah Scott, Melissa Fragiskos, Stephanie Weston and two others had gathered for a night of drinking.

[21] Leah Scott, Melissa Fragiskos and Stephanie Weston all testified that Jake Atkinson and his friend Connor Dibbs arrived at Jessica’s home sometime after the bars had closed. All three testified Jake Atkinson appeared intoxicated. Leah Scott observed Jake to be very red in the face with an injury to his forehead and his hand. Jessica Dubé gave him a bag of ice for his hand. Stephanie Weston and Melissa Fragiskos noted Jake was wearing a red shirt which Melissa described as a red plaid shirt which was wide open. His chest was bare and his pants were halfway down. Melissa, his former girlfriend, asked “what the hell happened to you?” and received no response. When she asked where he was coming from he indicated from Tailgators and Connor had been there too. He complained about his hand and asked Jessica for ice. When Melissa asked what happened to his hand he indicated “nothing” and ignored her.

[22] Jake Atkinson admitted he and Jessica Dubé had been texting back and forth previously that night from near the mall at Merivale Road and Norice Street.

Text Messages

[23] Admissions were made pursuant to section 655 of the Criminal Code that Telus records provided to investigating officer, Detective Steve Rehel, pursuant to production orders are true copies of the business records of Telus and are admissible pursuant to the Canada Evidence Act. Those records are for clients Jake Atkinson and his friends Dylan Almond, Jessica Dubé, and “Rick Ross”. On reviewing the text messages and based on the evidence of Det. Rehel, I find as a fact Jake Atkinson’s friend, Matt Tremblay used the phone for the subscriber Rick Ross to send text messages (Exhibit 13).

[24] It is further admitted that:

1. The telephone number(s) shown for each record are registered to the respective person listed on the Subscriber Information.

2. The subscriber information details the billing address that was current at the time the phone was activated.

3. Subscribers may at any time change their address without updating Telus of same, provided their billing address remains the same.

4. Only Telus subscribers are identified in the Subscriber Information section. Telus cannot provide subscriber information for non-Telus phone numbers (i.e., Bell, Rogers, etc…).

5. Telus does not verify the accuracy of the identity of the subscriber for Pay and Talk clients.

6. “Rick Ross 613-315-5741” is a Pay and Talk client.

7. Telus requires two pieces of identification for Regular clients, which identification is then verified.

8. Jessica Dubé, Dylan Almond and Jake Atkinson are Regular Subscribers.

9. Telephone voice calls to and from the subscriber are registered in the Call Details folders.

10. Text Messages to and from the subscriber are registered in the Text Messages folder.

[25] A careful review of the text messages filed as Exhibits 7, 8, 9 and 10 along with the evidence of Det. Rehel reveals that:

1. On December 9 at approximately 9:00 p.m. there was a gathering at Dylan Almond’s home. The group included Dylan Almond, Matt Tremblay, Connor Dibbs, Jake Atkinson and others.

2. Dylan Almond and others left Dylan’s home and went to Tailgators bar sometime after midnight. Dylan Almond texted that he was “coming home” at 2:02 a.m.

3. At just after 3:30 a.m. on December 10, Dylan Almond texted an unknown party asking that a cab be called to 12 Perry Street. Det. Rehel testified this was the residence of a mutual friend of Jake Atkinson and Dylan Almond, a Mr. Juneau. 12 Perry Street is across the street from where James Peters was assaulted with the pipe.

4. As indicated by Leah Scott, Melissa Fragiskos and Stephanie Weston, Jake Atkinson arrived at Jessica Dubé’s home in the early morning hours of December 10 and stayed overnight.

5. On December 10 Jake Atkinson was confronted in text messages from a Ms. Johnson and Katja Sally regarding the beating of James Peters. When told that a lot of guys think you beat up a kid last night and asked if he was at Tailgators, Jake Atkinson indicated: a) he was in bed at 11:00 p.m.; b) he did not go out; and c) he chilled with friends and then went home.

6. On December 11 in an exchange with Katja Sally starting at 11:14 p.m. and ending at approximately 12:36 a.m., Jake Atkinson was confronted about James Peters. Katja texted “you know you did the other night with a pipe I’m gonna make sure something similar happens to you pathetic piece of shit”.

7. On December 15 at 8:04 p.m. Leah Scott texted Dylan Almond regarding “last Friday night”. Mr. Almond denied knowing anything except that he was at Tailgators and left; there was a fight but he did not know about it until the next day.

8. On December 12 beginning at 6:50 p.m. there were a number of texts between Jake Atkinson and Matt Tremblay regarding Jake coming to speak with Matt Tremblay’s younger brother Chris Tremblay. James Peters was a friend of Chris Tremblay’s. Detective Rehel had been calling Matt Tremblay 6-7 times over a number of days trying to reach him in order to conduct an interview. He did not reach Matt Tremblay but did speak with Chris Tremblay. There were a number of text messages as to whether or not Jake Atkinson would come to see Matt and his brother or whether Matt would just speak to Chris for Jake. There was the following exchange (Exhibit 8, page11 of 72):

12-Dec-11 18:54:22 Matt Tremblay (613-315-5741) to Jake Atkinson (613-864-9631):

i dunno man what do u want me to say hes here now n im sure itll come up in convo

12-Dec-11 18:57:06 Matt Tremblay to Jake Atkinson:

bud im just gunna tell him the truth from my point of view i left at 1 and have no idea what happened

12-Dec-11 18:59:24 Jake Atkinson to Matt Tremblay:

Ya with me Lol Do what u gotta do but just tell him he shouldn t be friends with snitches and if his boys are tryna start something

12-Dec-11 18:59:35 Jake Atkinson to Matt Tremblay:

I will finish it

Other text messages reveal that Jake Atkinson went to Matt Tremblay’s place and spoke to his brother.

9. There was mention of a “baton” in text messages between Jake Atkinson and Dylan Almond as follows.

12-Dec-11 20:55:25 Jake Atkinson to Dylan Amond (613-897-7443):

Yooo just met up with tremblay n his bro Had a talk I m just gonna go to jess s tonight

12-Dec-11 20:56:45 Dylan Almond to Jake Atkinson:

Lol Why What did chris say Did u get rid of that baton

12-Dec-11 20:58:06 Jake Atkinson to Dylan Almond:

Ill see u tomorrow But everything is good

That exchange ended with Dylan Almond texting “K”.

10. There are a number of texts to and from Matt Tremblay in which Matt Tremblay indicates the police came to talk to him and Connor Dibbs regarding the incident. On December 23 at 1:13 a.m. Matt Tremblay texted his girlfriend Vanessa Nimeau that the police had talked to Connor Dibbs that day. Vanessa responded: “Omg about Jake That s kinda scary”. Matt responded “ill explain on the phone with you lol when we talk”. Texts on January 16, 2012 confirm there was discussion between Matt Tremblay and the police; he did not cooperate with them and indicates he told them to ‘fuck off’. Again, Matt Tremblay’s girlfriend Vanessa Nimeau asked if the police said Jake’s name and Tremblay indicates ‘no’.

11. On December 23, 2011 Matt Tremblay texted Vanessa Nimeau that he had just got home and Jake picked him up. They went to Connor’s because they had to have a “team meeting”. Ms. Nimeau responds “No way is everything ok” and Matt Tremblay indicated he was “fine personally so lol its good”.

12. On January 13, 2012 there are texts between Jessica Dubé and Matt Tremblay as well as Dylan Almond and Matt Tremblay regarding the police coming to talk to Leah Scott and wanting her to “snitch”. Matt Tremblay told Jessica Dubé to tell Leah she legally does not have to talk to them if she is not under arrest. Jessica Dubé indicated “will do”. A few minutes later Jessica Dubé texted Matt Tremblay and indicated “She s goin to talk to them”. Matt Tremblay indicated tell her not to and asks for her number. Jessica Dubé said she could not give him the number. Approximately 10 minutes later Jessica Dubé stated that she was getting frustrated and wanted to “go tie her up so she doesn t go”.

13. On January 13 at 1:30 p.m. Dylan Almond texted Matt Tremblay indicating “tell joseph [also known as Jake] don t talk to leah they wanna talk to her”.

[26] Det. Rehel testified he interviewed Leah Scott who confirmed that Jake Atkinson arrived at Jessica Dubé’s in the early morning hours of December 10 and was injured. She also stated that Jessica Dubé asked her to lie regarding Jake Atkinson being there that night. A charge of obstruction of justice was laid against Jessica Dubé. That charge ultimately went to trial and Ms. Dubé was convicted.

CREDIBILITY

[27] I found the testimony of James Peters and his friends Phil Gauthier, Dillon Meiller, and Justin St. Jean straightforward, largely consistent and credible as to what transpired when they were together that evening. Their testimony was not contradicted by any other testimony or evidence. The differences in their testimony are understandable and to be expected under the circumstances. For example: 1) exactly what each was drinking that evening; 2) where they were standing when they were approached by the two white males for a lighter; and 3) what the group was yelling at them as they were being chased.

[28] James Peters provided detailed, articulate, credible testimony and was largely consistent in his evidence in chief and cross examination. There were some differences highlighted on cross examination as follows.

1. James did not mention to the police that Phil Gauthier was with him and the others that evening. However, it is to be noted that: 1) Phil Gauthier arrived at Dillon Meiller’s home later than the others and 2) Mr. Gauthier was not in the bar with the others and only met up with them after they left Tailgators.

2. In his statement to police James indicated that while he was being beaten with the pipe he heard someone say “let’s go, let’s go” while the other kept on hitting him. In his testimony at trial, James indicated he heard someone say “let’s go, let’s go, we got him”. Under re-examination it was clarified that earlier in the same statement to police, James indicated he heard someone saying “let’s go, let’s go, we got him” while the other kept on hitting him.

[29] Overall, I found James Peters a credible, reliable witness.

FINDINGS OF FACT

[30] Based on all the evidence, I make the following findings of fact:

1. While James Peters and three of his friends were at Tailgators bar in a strip mall off Merivale Road in Ottawa at approximately 1:00 a.m. on December 10, 2011, the accused, Joseph (Jake) Atkinson, was sitting behind them at a table. Jake’s friends, Matt Tremblay, Dylan Almond, Connor Dibbs and approximately six other young males were also present.

2. Jake Atkinson or someone at his table called Justin St. Jean over. Jake Atkinson called Justin names and put him in a headlock. Justin told him to ‘fuck off’ and left the table.

3. After Justin St. Jean indicated what had happened, James Peters and the rest of his group became anxious and uneasy and left the bar at approximately 2:00 a.m.

4. After meeting Phil Gauthier, James and his friends began walking across the mall parking lot. They heard yelling behind them and were chased by a group of six to eight white males who were yelling, swearing and making threatening comments. Neither James nor any of his group observed any weapons including a bar, pipe or baton at the bar or during the chase.

5. James Peters and the rest of his group ran and scattered. James hid alone in the backyard of a Norice Street residence. Norice Street is close to the mall and is the street entered after the corridor or alley exiting the mall.

6. After waiting a number of minutes, James left the backyard and noticed two people to his east on Norice Street. He therefore proceeded to walk west and ran into Jake Atkinson at the intersection of Norice and Perry Street. He also observed one or two others on Perry Street. Jake Atkinson’s friend Mr. Juneau lives at 12 Perry Street.

7. Jake Atkinson stated to James Peters “where the fuck are you going?” and punched James in the face more than once. James punched back once and ran. Jake Atkinson admits he assaulted James Peters on that occasion. Again no weapon was observed by James Peters.

8. After James began running, Jake Atkinson chased him; pulled him to the ground with the hood of his jacket and began punching and hitting him when he was down. James curled up in a ball or a fetal position and was not able to fight back.

9. As he was being punched by Jake Atkinson, James Peters briefly saw a black pole/bar/pipe approximately 1-2 feet long and someone began hitting him mostly in the face and head area as he was lying on the ground.

10. James heard voices and was aware there were two or more people present.

11. The beating continued with the pipe and someone kept saying “let’s go let’s go we got him” while another person continued to beat him.

12. After a few minutes the beating stopped. James could not see as his eyes were swollen.

13. He crawled to a porch of a residence on Norice Street, rang the doorbell and subsequently the police and an ambulance were called.

14. The injuries to James Peters were significant. It is acknowledged and admitted they meet the definition of wounding and maiming sufficient for aggravated assault under section 268 (1) of the Criminal Code.

15. After the beating, at approximately 3:30 a.m. Dylan Almond requested a cab pick him up at 12 Perry Street, the residence of a mutual friend of he and Jake Atkinson. That residence is across the street from the intersection of Perry and Norice Street where James Peters was beaten.

16. After the beating, Jake Atkinson and Connor Dibbs arrived at the home of Jessica Dubé, Jake Atkinson’s girlfriend with whom he had been texting throughout the evening and night.

17. Jake Atkinson was dishevelled, appeared intoxicated and had an injury to his hand which required icing. Leah Scott also observed an injury to his forehead. When asked what happened, Jake would not answer.

18. Jake Atkinson remained at Jessica Dubé’s residence until the afternoon of December 10, 2011.

19. Throughout December, 2011 and January, 2012 there were numerous texts between Jake Atkinson and his friends regarding the assault on James Peters. In those text messages:

(a) Jake Atkinson lied as to where he had been and what he had done that evening;

(b) Jake Atkinson and Matt Tremblay discussed what to say as to what had occurred that evening. They planned to say they left at 1:00 a.m. together and have no idea what happened;

(c) Concerns were expressed by Leah Scott, Katja Sally and Vanessa Nimeau as to what had occurred and Jake Atkinson’s involvement;

(d) Jessica Dubé and Matt Tremblay expressed concern regarding Leah Scott’s decision to speak to the police and their wish that she not do so; and

(e) There was an exchange between Jake Atkinson and Dylan Almond on December 12, 2011 (Exhibit 8, page 12 of 72). Jake Atkinson texted Dylan Almond indicating he had just met with Matt Tremblay and his brother and had a talk. At 8:56 p.m. Dylan Almond texted back “Lol Why What did chris say Did u get rid of that baton”. Jake Atkinson responded “Ill see u tomorrow But everything is good”. A reasonable inference to be drawn is that Jake Atkinson was involved in a plan to dispose of a “baton” within 48 hours of the beating of James Peters.

[31] The fact that Jake Atkinson appeared at Jessica Dubé’s home after James Peters was beaten, and was dishevelled, apparently intoxicated and refusing to answer what happened and where he had been could be explained by the fact he committed an assault on James Peters when he first met him at the intersection of Norice and Perry Streets. A number of the text messages could likewise be explained, although no explanation was offered.

[32] The exchange between Dylan Almond and Jake Atkinson regarding getting rid of the baton, I find significant. No explanation was provided. This exchange is circumstantial evidence of participation and complicity in the aggravated assault on James Peters. It must be considered along with all the other evidence.

ADMISSIONS

[33] As noted above, the accused, Jake Atkinson, made a number of admissions as follows:

1. It is admitted he committed an assault on James Peters in the early morning hours of December 10, 2011 by punching and hitting him and is therefore guilty under section 266 (a) of the Criminal Code.

2. It is admitted that the serious, long term and permanent injuries suffered to James Peters as a result of the attack upon him on December 10, 2011 meet the definition of “wounding” and “maiming”, sufficient for aggravated assault as outlined under section 268 (1) of the Criminal Code.

3. Jake Atkinson admitted he texted throughout the evening with his girlfriend Jessica Dubé and arrived at her home after the beating occurred on December 10, 2011.

4. Jake Atkinson admitted that the Telus text messages and phone records are admissible pursuant to the formal written admissions under s. 655 of the Criminal Code noted above.

POSITIONS OF THE PARTIES

[34] The defence argues the Crown has not proven all of the elements of an aggravated assault, under s. 268 of the Criminal Code, beyond a reasonable doubt.

[35] Jake Atkinson does not admit he wielded the pipe alone or with others as part of a joint plan to beat up James Peters that evening. Nor does he admit he in any way encouraged or facilitated the commission of the offence. He argues the evidence is insufficient to make any of these findings beyond a reasonable doubt.

[36] The Crown argues Jake Atkinson is guilty of an aggravated assault pursuant to section 21 (1)(a) of the Criminal Code as he actually committed it or (b) as he did or omitted to do anything with the purpose of assisting another with the commission of the offence, or pursuant to section 21 (2), as he assisted in committing the offence after forming an intention in common with others to carry out an unlawful purpose, when he knew or ought to have known that commission of the offence was a probably consequence.

LAW AND ANALYSIS

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

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

[38] As noted above, James Peters was wounded and maimed by the serious injuries he suffered that evening which are admitted. Further it is admitted that James Peters was attacked and beaten with a bar or pipe as he described that evening. What is not admitted is that Jake Atkinson was in any way involved in that attack.

[39] In R. v. Vang, 1999 2310 (ON CA), 132 C.C.C. (3d) 32 [Vang], the Ontario Court of Appeal considered the mens rea required for the offence of aggravated assault. At para. 12 the Court quotes from the Supreme Court of Canada decision in R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3 as follows:

In R. v. Godin, Cory J. said for the Supreme Court of Canada at p. 575:

The mens rea required for s. 268(1) of the Criminal Code, R.S.C. 1985, c. C-46, is objective foresight of bodily harm. It is not necessary that there been an intent to wound or maim or disfigure. The section pertains to an assault that has the consequences of wounding, maiming or disfiguring. This result flows from the decisions of the court in R. v. DeSousa (1992), 1992 80 (SCC), 76 C.C.C. (3d) 124, 95 D.L.R. (4th) 595, 1992 80 (SCC), [1992] 2 S.C.R. 944, and R. v. Creighton (1993), 1993 61 (SCC), 83 C.C.C (3d) 346, 105 D.L.R. (4th) 632, 1993 61 (SCC), [1993] 3 S.C.R. 3.

The Court goes on:

This sets forth a part of the mens rea of the offence of aggravated assault as far as the perpetrator is concerned. (It is clear that in addition to the consequences of the assault referred to in this passage there is that of the endangering of life). The full mens rea is the mens rea for the offence of assault and objective foreseeability of bodily harm.

[40] 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.

[41] The Crown argues that Jake Atkinson along with others who have not been charged and are not on trial committed an aggravated assault. Therefore he is guilty as a joint principal. As noted by The Honourable Mr. Justice David Watt in Watt’s Manual of Criminal Jury Instructions, Carswell 2nd Ed., the distinction between a joint principal and an aidor or abettor is at times difficult to determine. In considering different modes of participation, Justice Watt indicates an appropriate test may be whether the accused by his own specific act as distinct from anything done by another individual with the accused’s advice or help, contributed to the causation of the external circumstances of the offence.

[42] In the case at bar, I cannot find Jake Atkinson a joint principal to the aggravated assault beyond a reasonable doubt. I cannot find beyond a reasonable doubt that Jake Atkinson beat James Peters with the bar/pipe or baton or that he was aware of the bar in advance; provided the bar to another individual or ever touched the bar before or during the beating.

[43] Section 21 (1) (b) makes everyone a party to an offence for acts or omissions which are done for the purpose of aiding someone to commit the offence. In this case omissions are not relied upon.

[44] An individual may assist another person to commit an offence by doing something. It is not sufficient that the accused’s conduct have the effect of helping another person commit the offence. The accused must intend to assist the other person commit the offence. In addition whatever is done by the accused must actually assist in the commission of the offence.

[45] In order to establish that the accused intended to assist the principal commit the offence, there must be more than mere presence at the scene of the offence. As stated by Justice Gareau in R. v. Rocchetta, 2014 ONSC 3058 at para. 106,:

…There must be encouragement of the principal or an act which facilitates the commission of the offence, or an act which tends to prevent or hinder interference with accomplishment of a criminal act. Presence at the scene of an offence is aiding or abetting only if accompanied by other factors such as prior knowledge of the principal’s intention to commit the offence or attendance for the purpose of encouragement. (See R. v. Dunlop, 1979 20 (SCC), [1979] 2 S.C.R. 881, 47 C.C.C. (2d) 93 (S.C.C.).) The common intention can be formed even at the moment of the offence.

[46] Therefore, if an individual knows that someone intends to commit a specific offence and is present at the location when the offence is committed in order to help the other person commit that specific offence, that person is an aidor of the other’s offence and equally guilty. It does not matter that the person who is actually aided is not on trial or cannot be convicted of the offence.

[47] In the case at bar it is also important to consider section 21 (2) of the Criminal Code which covers the situation where the unlawful purpose is different than the offence charged. This subsection covers the case where, in the absence of aiding and abetting, the person may become a party to an offence committed by another which he knew or ought to have known was a probable consequence of carrying out the original unlawful purpose, see R. v. Simpson and Ochs 1988 89 (SCC), [1988] 1 S.C.R. 3, 38 C.C.C. (3rd) 481.

[48] The three essential elements under section 21 (2) are: an agreement; an offence; and knowledge.

[49] The agreement requires a common intention to carry out an unlawful purpose and to assist in each other in doing so. There must be something more than mere presence at the scene of an offence. However the agreement or common intention may be formed on the spur of the moment as the offence is being committed. There is not a requirement that anything specific be said. The common intention to carry out the unlawful purpose may be established due to the way in which the participants acted.

[50] In Vang the Ontario Court of Appeal stated at para. 24:

Further, as far as the intention in common is concerned, this phrase means no more than two (or more) persons must have in mind the same unlawful purpose. The common intention may not be formed or articulated in advance of the action, but may arise at the instant of the offence being committed, the mutual intention to pursue unlawful purpose and to assist each other therein being formed at the very moment of carrying it out. See Rose, Parties to an Offence (1982) at pp. 67-68.

[51] In Vang, three accused were charged and convicted as parties to an aggravated assault under section 21 (2) of the Criminal Code after to a fight which led to a stabbing incident. In that case the accused did not know that the perpetrator had a knife but the trial judge held that the accused formed a common intention to assault the victim and knew or should have known that bodily harm would be the probable consequence. The accused’s appeals were dismissed.

[52] In further considering the issue of common intention the Court noted at para. 25:

It is clear that there was sufficient evidence of common intention to satisfy the requirements of s. 21 (2). The three accused were bent on attacking only Rampersaud as a result of the racial slurs he directed at them. Even if the assault was commenced by only one party, once the appellants joined the attack they can properly be found to have engaged in a common purpose to assault Rampersaud and to assist each other therein. The trial judge accepted Camellia Harris’s evidence as to the roles played by each accused. She testified that the appellants were punching and kicking Rampersaud simultaneously.

In the case at bar I find sufficient evidence that Jake Atkinson and at least one other formed a common intention to assault James Peters. The assault was commenced by Jake Atkinson and once another or others joined the attack, as in Vang, they can be found to have engaged in a common purpose with Jake Atkinson to assault James Peters and to assist each other. Jake Atkinson was punching and hitting James Peters when at least one other person arrived and participated in the assault. James Peters was kicked and someone began hitting him with the bar or pipe. There was a mutual intention to pursue the unlawful purpose and to assist each other.

[53] The second element, offence, requires proof that one or more of the persons who were part of the agreement formed to assault James Peters, but not necessarily Jake Atkinson, committed an aggravated assault in carrying out the original agreement. The offence, in this case the aggravated assault, must occur in the course of carrying out the original plan and it must also be a crime other than the one originally agreed upon. In this case, Jake Atkinson began the assault by punching and hitting James Peters with his fists while James was on the ground, curled up in a ball in a fetal position. While that assault was ongoing, at least one other joined in and James felt punches and kicks and was aware that more than one person was present. At that point he briefly saw the bar or pipe and someone began to hit him with it. There is insufficient evidence to prove beyond a reasonable doubt that Jake Atkinson with others originally agreed and set out to commit an aggravated assault with a bar or pipe. There is sufficient evidence to prove beyond a reasonable doubt that someone who was part of the agreement to assault James Peters committed an aggravated assault.

[54] The third element, knowledge, under section 21 (2) of the Criminal Code can be subjective or objective.

[55] In Vang the Ontario Court of Appeal considered the mens rea of a party to an aggravated assault under section 21 (2). It was argued for that element to be proven the court would have to determine whether the completed offence of, in the Vang case, “endangering life”, was objectively foreseeable by the appellant. The Court held the question was not whether the appellants in engaging in the common unlawful purpose of assaulting the victim foresaw or ought to have foreseen the specific harm that resulted, i.e. the endangering of life. The Court noted at paras. 15 and 16 as follows:

[15] …the question is whether the appellants, in engaging in the common unlawful purpose of assaulting Rampersaud, foresaw, or ought to have foreseen, that bodily harm was a probable consequence of carrying out the common purpose. If the answer is yes, then, provided Rampersaud’s injuries did, in fact, endanger his life, the appellants are guilty of aggravated assault.

[16] …The specific harm that resulted may not have been foreseeable, but it is clear that, as the trial judge found, bodily harm was objectively foreseeable as a probable consequence of engaging in the fight. Parties to the offence are bound by the consequences in the same manner as the actual perpetrator…

[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 (3rd) 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.

Conclusion

[59] In summary, based upon all the evidence and having made specific findings of fact and credibility, I find beyond a reasonable doubt that Joseph (Jake) Atkinson was a party to the offence of aggravated assault by a person or persons unknown.

[60] Therefore, I find Joseph (Jake) Atkinson guilty of committing an aggravated assault on James Peters contrary to section 268 (2) of the Criminal Code.

Blishen J.

Released: June 24, 2015

CITATION: R. v. Atkinson, 2015 ONSC 4037

OTTAWA COURT FILE NO.: 12-A13167

DATE: 2015/06/24

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Plaintiff

– and –

JOSEPH ATKINSON

Defendant

REASONS FOR Decision

Blishen J.

Released: June 24, 2015