R. v. Fensom, 2016 ONSC 868

CITATION: R. v. Fensom, 2016 ONSC 868

COURT FILE NO.: CR-15-10000620

DATE: 20160201

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

JAMES FENSOM

Defendant

Erin Winocur, for the Crown

Ilan Neuman, for the Defendant

HEARD: November 27, 30; December 1-4, 7 and 8, 2015

REASONS FOR JUDGMENT

Michael G. Quigley J.

Introduction and Overview

1James Fensom is charged with having committed two assault offences on the evening of April 4, 2010; assault causing bodily harm against Craig Burden and aggravated assault against Edward Haehnel.

2James Fensom was employed at that time by a private security firm. He had been providing services as a “bouncer” at the Light Lounge Night Club, an after-hours club located in the entertainment district west of University Avenue in Toronto. He worked there for at least 18 months before this incident, evidently without any prior physical altercations with customers. Mr. Fensom has no criminal record.

3It was Craig Burden's birthday. He and a group of between 12 and 15 mostly male friends rented a limo bus and traveled from Craig's residence in Ajax to the clubs in downtown Toronto, and specifically to the Light Lounge. They went to celebrate his birthday, but the evening did not end with the same happy mood with which it commenced.

4Just before closing time, Craig Burden and his friends were expelled from the Light Lounge. They were not walked gently to the door. A significant altercation occurred. The video surveillance system shows James Fensom and Craig Burden coming into view near the front door, already engaged in a physical altercation and grappling with each other. It shows Craig Burden falling to the floor right by the front door of the club and it shows James Fensom using his foot with what appears to be a kicking action repeatedly making contact with Craig Burden’s side as he lies on the ground. Craig Burden then gets up and is pulled out of the door of the club by another member of the security staff, now known to be Valeriano Pagnana.

5Right as Craig Burden is being expelled, his friend Edward Haehnel comes into view in the front foyer of the club. He can be seen in the video surveillance camera moving towards James Fensom. He can be seen grabbing James Fensom’s shirt. James Fensom can be seen spinning around towards Edward Haehnel, as Edward himself spins around towards the bottom of the frame. James Fensom acknowledges in his testimony that it was during that moment that he punched Edward Haehnel in the eyebrow area of his face. He said he punched him because he saw Edward with a menacing clenched fist that James Fensom believed was coming towards his head.

6After these incidents, Craig Burden and his friends reassembled on the street. They were standing beside the limo bus. Craig was very angry and he was also very intoxicated; he was gesturing angrily and yelling threats menacingly towards the bouncers of the Light Lounge across the street. Two police officers in the vicinity came to the location and told Craig and his friends to clear out. Officer Torrance indicates that he repeated that order to Craig Burden at least ten times. When Craig Burden resisted, Officer Torrance arrested him for public intoxication.

7The rest of his friends went back to Ajax on the limo bus. Once they arrived home, Edward Haehnel went to the hospital. His eyebrow was cut above his right eye and he suffered a “blowout fracture” of his right eye socket. Unfortunately for Haehnel, he had sustained an injury to the exact same location in 2000. It is unknown whether the earlier injury made him more susceptible to injury on the second occasion, but he did require stitches to close the wound on his right eyebrow and has other residual physical symptoms that remain with him to this day. Craig Burden sustained a fractured eighth rib from this incident, an injury that caused him considerable pain for over a month and that he says still causes him pain to this day.

8Edward Haehnel’s mother is a lawyer. Sometime later, she contacted Craig Burden and asked whether he had reported the matter to the police. He had not before then, but did so on her recommendation. Craig Burden understood that she wanted to sue the Metropolitan Security Company that provides security to the Light Lounge Club, the Club as well, and also James Fensom to recover civil damages. Mr. Burden and Mr. Haehnel are the plaintiffs in the civil litigation that has been commenced against those defendants arising out of the incident in which they seek over $1 million. In addition, their statements to police resulted in these charges being laid against James Fensom.

9At trial, Mr. Fensom testified in his own defence. He claims that he did not use excessive force in the circumstances that he faced as he had to physically eject Craig Burden and Edward Haehnel, and Craig’s group of friends from the Light Lounge Night Club early in the morning of April 4, 2010. James Fensom says he should not be found criminally liable because he did not use excessive force and acted in his own self-defence. Crown counsel claims that no legal defence was available to him. She argues that the evidence, including James Fensom’s own testimony, proves his culpability beyond a reasonable doubt.

The Videotape and Photographic Evidence

10The trial commenced with a Crown application to have the portion of the surveillance video footage relating to this altercation at the entry foyer of the Light Lounge Club accepted as a “videotape”, and identified in accordance with the principles established in R. v. Nikolovski, 1996 CanLII 158 (SCC), [1996] 3 S.C.R. 1197, R. v. Murphy, 2011 NSCA 54, 274 C.C.C. (3d) 502, at para 48, R. v. James, 2015 ONSC 3902, at paras. 32-35, and in R. v. Leaney, [1989] 2 S.C.R. 292 and R. v. Berhe, 2012 ONCA 716, 113 O.R. (3d) 137. However, defence counsel initially contested its admissibility. He claimed that split-second gaps between frames in that videotape caused the videotape to unfairly represent the activities that take place on the footage. Those gaps were caused because the multiplex system was sequentially rotating on a split-second basis to record the activity caught by nine other cameras in the club.

11Ultimately, the voir dire on admissibility of that videotape was resolved on consent. The videotape was admitted into evidence, but with me recognizing its deficiencies. Obviously, it could show nothing more than what it showed, essentially a rapid collection of still photographs which, when played in rapid sequence, showed movement of the actors portrayed in the footage, but like a 1920’s silent motion picture, without the smooth continuous action we associate with the viewing of modern videotape footage. It was also agreed that the still photographs contained on a thumb drive and consisting of the same frames that are in the “videotape” footage, plus additional framed images from the video camera located on the landing at the top of the stairs outside the main entry, would also be admitted. All of these videotaped and still photographic images were identified by the principal witnesses on this trial.

Summary of Relevant Evidence

12Sam Salerno was the first witness to testify. He was the operating manager of the Light Lounge Club and responsible for the liquor and permits. He did not generally work the floor, and usually remained in the back room while activities in the nightclub went on every Friday and Saturday. He identified himself when he appears in the video towards the end of the videotape footage, after the altercation occurred and just after Craig Burden and Edward Haehnel were thrown out. He also recognizes and identifies James Fensom standing in the foyer.

13On April 4, 2010, he was in the back room when he heard a call for security, so there must have been a commotion or disturbance of some kind. He headed for the front door. He found a commotion there and he saw a number of people, including his floor manager Mike Pounidis, and others, wrestling and grappling at the doorway. Sam Salerno did not personally see anyone get hit, but he knows what took place from having viewed the videotape.

14Sam Salerno explained that there were nine tracks of video derived from the nine separate surveillance cameras, but they were all recorded on one track of tape. He did not understand the technical process, but knew the reason for the seeming jumpiness in the movement of the individuals when the video footage played. It was caused by the cycle of split second switching to other surveillance cameras. In addition, while the videotape indicated that the time was close to 1:30 in the morning, the time recorded on the videotape was off by half an hour. The actual time was just before last call at 2:00 am. Any beverages served to patrons at last call had to be consumed by 3:00 am when everyone had to be out and the doors locked.

15Detective Constable Hutchings is a 12-year veteran of the Toronto Police Service and the case manager in this matter. She first became aware of the case on April 8, 2010 when she was assigned as OIC. She went to the club and retrieved the surveillance videotape from April 4. However, it was an old VHF format recording produced by an old multiplex surveillance system. Toronto Police Services tech and forensic officers were unable to reproduce the videotape on a DVD. The images recorded on that system could be seen only if they were run on the same machine on which they had been recorded.

16As a result, to ensure the footage would be available for this trial, Constable Hutchings returned to the Light Lounge Club on July 10 with Detective Todd Higo. He helped Constable Hutchings capture those images by using his own handheld video camera, a so-called Handycam, to make an uninterrupted recording of what was being displayed on the club’s multiplex video surveillance system monitors. That copy of the video footage was then used at this trial. DC Hutchings saw no evidence of any altercations taking place on any of the other camera views that she observed.

17Craig Burden remembered going to the club with a group of friends to celebrate his birthday. The group included Edward Haehnel, who Craig Burden described as “a friend of a friend.” Mr. Burden did not remember what time they arrived. Clearly they had done some "pre-drinking" before venturing downtown. Mr. Burden could not remember how much he had to drink. He and his friends arrived early, and then the club filled up later in the evening.

18Mr. Burden said that he was standing by the bar and talking to a friend when he was grabbed from behind. He felt a very large arm go around his neck. It was choking him. He claimed that no altercation of any kind occurred before he was grabbed by that individual, spun around and then pulled down to the ground with two hands on his shoulders. He recalled being spun around and pulled down to the ground, but he does not know where that took place. It is clear that there was at least some period of time he does not recall during which Mr. Fensom was hustling him through the club towards the door. The evidence showed he has no distinct recollection of events, between the time he was grabbed and the time when he went to the ground at the door of the club.

19Mr. Burden testified that he got pushed to the ground, which the video footage shows was at the doorway, and was then hit in the side as he was lying on the ground. At that time, he did not know where he was. He could not see, but felt both sides of his rib cage being struck several times. He did not know how many people were involved.

20Craig Burden described the person who grabbed him, dragged him to the door, and hit him in the ribs as "a massive guy” who was bigger than himself, but he could not describe him beyond that. Essentially, Mr. Burden remembered very little of what transpired that evening, no doubt owing to excessive consumption of alcohol. However, when shown the videotape of the incident, Mr. Burden was able to recognize himself and his friend, Edward Haehnel, and James Fensom when he appears in the videotape as the person who was inflicting blows on him with his foot. Mr. Burden claimed to have a specific memory of having been pushed to the ground and stomped on. He did not know what was causing the blows to the side of his rib cage, but the video plainly shows it was the defendant's leg. Mr. Burden recalled a lot of force behind those blows. He felt like he was being “hit in the side with a baseball bat.” Nevertheless, the blows did not incapacitate him and he was able to stand up on his own some seconds later just before being grabbed from behind by security staff located outside the front door and pulled outside of the club.

21When the physical contact stopped, he stood up and saw people all around him and a lot of commotion. Seconds later, he remembered he was pulled through the front door by a person who was located outside the door. Mr. Burden does not know who pulled him but we now know it was security staff, Valeriano Pagnana. Mr. Burden had no independent knowledge, apart from having seen the videotape, that the person who pushed, dragged or carried him towards the exit door was this accused, James Fensom.

22Once he got down to the street, Mr. Burden and his friends congregated on the sidewalk where the limo bus was located. That was right across the street from the front entrance to the Light Lounge Club. Mr. Burden remembered that a police officer came up and told him and his friends to leave. He resisted. He says he told the officer that he had just been assaulted and beaten up in the bar and that he was not leaving. The officer arrested Mr. Burden for being intoxicated in a public place. Plainly, on Officer Torrance’s evidence, Mr. Burden was quite intoxicated, non-compliant and belligerent in the face of the police order that he and his friends leave the area.

23As described above, Mr. Burden went to the hospital the next day after he was released from custody on the charge of public intoxication, was diagnosed with a broken rib and given painkillers. He described his pain from the injury as "10 on a scale of 10", and that it lasted for a month.

24Finally, although Mr. Burden could not say how many drinks he had and had no memory of the period from the commencement of the incident until he was on the floor at the door, he denied that any run-ins occurred with anyone before this incident arose, including James Fensom or other security officers. When recalled to answer further questions, he had no recollection of having punched James Fensom before they got to the door of the club, much less twice as Mr. Fensom testified.

25Edward Haehnel has no recollection of the events preceding being punched in the right eye socket, apart from having seen the videotape evidence and having heard the testimony of James Fensom in which he acknowledges having punched Mr. Haehnel. He recalled going to the club and drinking and circulating around the bar early in the evening. He had no memory of being hit or thrown out of the club. His first memory after leaving the bar was walking on the street and meeting a friend in the group who asked him what happened when he noticed bleeding on his face. However, he is seen re-entering the lobby entrance area and then going towards the coat check where Mr. Fensom is located after receiving the blow to the right side of his face that is shown in the video.

26Mr. Haehnel and the medical witnesses described the injury to his right eyebrow area as a ‘blow out’ orbital bone injury. The skin was broken and bleeding. The injury was painful and required time off from work. Mr. Haehnel also had cuts and a stone embedded in his hand. He also described a bump on the back of his head. Mr. Haehnel acknowledged that he had a previous injury some ten years earlier in like circumstances. He agreed that he had entered into that fight in the foyer to help his friend, Craig Burden.

27Finally, there was the evidence of the accused, James Fensom. In 2010, Mr. Fensom worked at a factory during the day and as a “bouncer” security staff-person at night on Friday and Saturday nights each week. He worked for Metropolitan Security for 8 years and at the Light Lounge for 1 ½ to 2 years ending in 2010.

28Mr. Fensom testified that activity started late at the Light Lounge Club, but that Craig Burden’s group was among the first to arrive that night. James Fensom was outside when they arrived at the club. Some of the group complained about producing ID and being searched, but ID’s were produced and after being searched, they were admitted. An hour or so later, Mr. Fensom came inside to supervise the security in one of the VIP areas of the club for the balance of the night.

29At about 12:00 or 12:30 a.m., there was allegedly a concern about one group bothering another group at the club. Mr. Fensom spoke to both groups. Just before 2:00 a.m., the DJ put on a racy but popular rap song called “Move Bitch” by a rapper called Ludacris. About half-way through the “song”, a group on the dance floor started shoving each other into other patrons. Cody Baker, another security staff person, approached the group and the shoving stopped. Then, about a minute later, Mr. Fensom saw 4 or 5 males surrounding Cody Baker and Doug Duhaney. Mr. Fensom called on his radio for extra security. Hamon Hebbi, another security staff person, came up beside Mr. Fensom.

30Mr. Duhaney and Mr. Fensom decided it was time for Mr. Burden’s group to leave, but they refused. Mr. Fensom told Mr. Burden to put his drink down, and when he refused, Mr. Fensom pried the glass from Mr. Burden’s hand. Hamon Hebbi had hold of Mr. Burden, but he was having trouble controlling him, so Mr. Fensom grabbed hold of Mr. Burden to assist. Mr. Fensom held one of Mr. Burden’s arms behind his back and was walking him to the door, but Mr. Burden was struggling. During that struggle, Mr. Fensom claimed that Craig Burden twisted out of his grip and punched him twice in the head, one blow to his face and one to his head. He acknowledged they were not hard enough to cause injury. Those blows were also not caught on videotape.

31As they reached the front door, Mr. Fensom claims that Mr. Burden “tripped and fell”, and that Mr. Fensom was “shoving” Mr. Burden with his foot “by kicking him”, trying to push him out the door of the club. Then, Mr. Fensom felt someone grab him from behind. He turned around and saw a cocked fist. Mr. Fensom swung and punched that person before he got hit. Then he says he saw that person, now known to be Edward Haehnel, coming back towards him and he shoved Mr. Haehnel towards the door. He heard Sam Salerno yelling: “Get them out”, three times.

32Mr. Fensom said he did not bend over to help Mr. Burden up off the ground to protect his own safety. He was concerned about being punched or hit. He claimed he had been taught at a security course a year before that he should use his feet to push a person who had fallen to the ground rather than to risk personal injury by helping them up. Mr. Fensom did not agree that he used more force than necessary to get Mr. Burden out of the club.

33Specifically, I note a number of answers given by Mr. Fensom in his evidence insofar as they are relevant to the analysis under R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 and the determination whether the charges are made out:

(i) His employer required that he attend a self-defence course the year before this incident, taught by an ex-police officer. He said he was taught that if a patron fell to the ground during an altercation, it was acceptable to use a “leg strike,” rather than risking the security person’s own safety by reaching down to try and pull the customer back to their feet. I note that regardless of whether this was taught, it does not determine that the use of such techniques could be or is legally acceptable.

(ii) After Craig Burden went down to the floor, Mr. Fensom acknowledged that he used his leg to try to forcibly remove Craig Burden from the club while Mr. Burden was still on the ground. He was "trying to push [Burden] out of the door”, and he admitted to using a "shoving/kicking motion." That was when he "felt someone grab him from behind.”

(iii) The pull from the person behind him had enough force to turn Mr. Fensom around, at which point he saw “a cocked fist from, who I now know is Mr. Haehnel. I threw my punch before I felt I was about to get hit first."

(iv) Mr. Fensom was unable to gauge the force he used against Craig Burden. He said "I wouldn't be able to tell you the exact force. I wasn't gentle but I wasn't going to the full extreme that I can go." He said he kicked rather than going down to Mr. Burden's level for his own safety.

(v) Mr. Fensom agreed that he was kicking Mr. Burden to keep him on the ground. He said "Well, I didn't want him back up in my face again." However, Mr. Fensom also acknowledged he had no idea how much force he deployed. He responded "At that time, you're not calculating how much force you're using."

(vi) Neither did Mr. Fensom have any idea what degree of force he used when he punched Mr. Haehnel: “In that situation I'm not thinking about how hard I'm going. I'm just trying to protect myself and not get hit. Enough to try and keep him away from me.” He rejected that he hit Mr. Haenhel harder than he needed to.

(vii) Mr. Fensom agreed that persons on the ground should not be kicked, but he qualified his answer depending on the situation.

(viii) Mr. Fensom claimed to only “vaguely remember” a conversation where Sam Salerno confronted him shortly after this incident and told him “he could be in trouble” because the video surveillance footage video showed him kicking and punching Mr. Burden. He put that down to the passage of five years.

Analysis

34The charges against James Fensom are assault causing bodily harm and aggravated assault. R. v. W. (D.) requires me to acquit the accused if I believe his evidence that he did not commit the offences, or even if I do not believe him, if I am left in a state of reasonable doubt by his evidence. In that case, he must be acquitted.

35Here, I believe some but not all of Mr. Fensom’s evidence, but his own evidence acknowledges the physical and mental elements of the assaults. He admits using his foot to contact the right side of Craig Burden’s ribcage with some force as Mr. Burden was on the ground. He admits punching Edward Haehnel in the face. He says the force was not excessive. He says he acted in self-defence. The mental element is the objective foreseeability of harm, a standard plainly satisfied in both incidents as I address further later in these Reasons.

Factual Findings

36Before considering whether either or both of the charges are proven to the criminal standard, the following are my factual findings relating to the circumstances surrounding the incidents out of which the charges arose:

(i) Based on common sense and human experience, and the obvious physicality they display, I find that the events visible on the videotape were certainly preceded by some type of altercation. Whether they remember it or not, I accept that Mr. Burden and/or members of his group had some altercation or engaged in some confrontational conduct that evening that brought them to the specific attention of the security staff at the nightclub and that resulted in a request to Mr. Burden and his group to leave the premises. It was “time for them to go home.” This was just before 2:00 in the morning, minutes before last call.

(ii) Mr. Burden had a lot to drink that night and I find that he was quite intoxicated. Mr. Burden has no recollection of what transpired between the point where he claims to have been standing by the bar having a drink, and the point where he was being physically escorted out of the nightclub. His absence of memory and the fact he was arrested and taken into custody overnight for public intoxication after being ejected from the club supports that conclusion. It also undermines his denial of having punched James Fensom. He cannot be certain, despite his evidence to the contrary, when he acknowledges that he does not remember what happened between the time when Fensom grabs him and when he falls to the floor.

(iii) I accept Mr. Fensom's evidence that Mr. Burden and his group refused to leave the premises when asked, that Burden struggled with one of the other security staff and then continued to struggle with Mr. Fensom in order to resist being ejected as Fensom moved him towards the door of the nightclub.

(iv) I find that Edward Haehnel was sufficiently intoxicated to have no memory whatsoever of anything that transpired from the time when they were in the nightclub having drinks until he found himself having been expelled from the nightclub and standing down on the street with his friend Craig Burden, but also with his eyebrow and face bleeding from injuries he sustained.

37The defence asked me to make several other findings. The first of these was that Mr. Burden deliberately struck Mr. Fensom twice while resisting Mr. Fensom's actions to remove him from the nightclub.

38I have already addressed this point briefly, but it is important to note that Mr. Fensom only testified after two other defence witnesses. In this case, Hamon Hebbi and Valeriano Pagnano who were manning the outside of the door that evening both testified first. Mr. Fensom heard their testimony before giving his own.

39I also found that the failure to put the particular question to Mr. Burden in his initial cross-examination breached the Rule in Browne v. Dunn (1893), 1893 CanLII 65 (FOREP), 6 R. 67 (U.K. H.L.). Craig Burden was never asked whether he punched Mr. Fensom in the head or the face as he was being ushered out of the Club. That was important since Mr. Fensom later testified that was what precipitated his conduct – a claimed need to protect himself as he ejected Mr. Burden from the nightclub after taking two punches to his head.

40As a result, Craig Burden was called to testify again in reply but still, defence counsel did not put the question to him directly. Counsel asked Craig Burden if he might have been swinging or flailing his arms when he was grabbed. He denied it, but the key question was not asked. So Crown counsel was permitted to lead on the point. When she asked Mr. Burden directly whether “[a]t any point in your dealings with James Fensom that night, did you punch him?” Mr. Burden said he did not. He said “I never put my hands on anybody all night long. I never put my hands on anybody in the bar.”

41The failure to put that critical allegation to Mr. Burden inevitably must go to my assessment of the credibility of the defence evidence: see R. v. Quansah, 2015 ONCA 237, 125 O.R. (3d) 81, at paras. 79 and 85. Nevertheless, I found Craig Burden’s answer unpersuasive given his level of intoxication and absence of memory. While it may not have been punches to the head, I think it is more likely than not that there was physical flailing going on as Mr. Burden was being shown to the door, flailing that probably resulted in Mr. Burden making physical contact with Mr. Fensom. So Mr. Fensom’s evidence that he took two punches to the head is embellished and possibly exaggerated, but I do not find it to be without any reasonable foundation.

42Certainly on his own evidence, Mr. Burden was grappling with the “huge” person who was man-handling him out of the club, but for whatever resistance he was likely exhibiting to the ejection, I cannot be certain that he punched Mr. Fensom, but the failure to ask the question also reduces the credibility of Mr. Fensom’s evidence that he acted in self-defence relative to at least Craig Burden. Further, the decision to call the evidence of two other security officers on staff that evening before Mr. Fensom permitted Mr. Fensom the opportunity to position his evidence to fit into theirs. Whether he actually did or not one cannot know, but that also requires that I give somewhat less weight to the evidence of Mr. Fensom. In the end, however, it does not affect the result for other reasons set out below.

43The defence advocates for several further inferences to be drawn:

(i) It is claimed that the video recording cannot demonstrate how much force Mr. Fensom used to push Mr. Burden out the door. I reject that contention. Even though the video footage is not perfect, it does show Mr. Fensom, a very large man, moving his leg and foot backwards as at the beginning of a kicking motion and then following through. He does this several times. It defies the evidence to suggest it is not a kick. It also defies the evidence to suggest it did not have some considerable force. The defence argues that the cracked rib suffered by Mr. Burden may have resulted from Mr. Fensom stepping on Mr. Burden’s right side, but I see no evidence of that. There is no basis in the evidence to suggest that the force of the kicks was not significant, even if I agree that Mr. Fensom does not appear to be “winding up” and putting his entire considerable weight into the kicks. Defence counsel acknowledges that the video does show Mr. Fensom bending his leg at the knee and executing a kick. It may not have been his full weight behind those kicks, but it was enough to break a rib. The medical evidence establishes that ribs do not break easily. The injury is actually externally visible only an hour later when the booking video of Mr. Burden being paraded before the Sergeant after his arrest for public intoxication specifically notes the presence of extensive bruising on Mr. Burden’s right side, front and back. The nightclub video shows that was where Mr. Fensom’s “leg strikes” made contact.

(ii) A second farfetched inference is suggested relative to how Mr. Haehnel sustained his injury. Officer Torrance recalled that while he was arresting Mr. Burden, a male came across his back and Officer Torrance “smashed” that individual in the face with an open hand. Defence counsel argued it is reasonable to infer that the person who Officer Torrance smashed was Mr. Haehnel and that he injured himself when he fell onto the street. It is acknowledged that the cut to the eyebrow was caused by Mr. Fensom’s punch. Mr. Haehnel is seen dabbing at the right side of his face, feeling for blood and looking at his hand as he is ejected, and Sam Salerno specifically recalled asking for a towel because one of the patrons being ejected was bleeding. But I reject the claim that it is reasonable to infer the broken orbital bone was the product of a later injury caused when Mr. Haehnel fell to the street. The reason is simple. There is a direct image of Mr. Fensom punching Mr. Haehnel in the face and the punch had force to it. The reasonable inference is that it was that blow that not only cut the skin, but also caused the orbital fracture.

44I turn now to the elements of the two offences themselves and whether the Crown has proven the elements of the offences beyond a reasonable doubt.

Proof of the Offences

45An assault consists of the intentional application of force by one person to another without consent. Even a minor touching may be an assault if it is done in anger or takes place in a rude, insolent or a vengeful manner: R. v. Z. (A.) (2000), 2000 CanLII 16976 (ON CA), 137 O.A.C. 385 (Ont. C.A.); R. v. Burden (1981), 1981 CanLII 355 (BC CA), 64 C.C.C. (2d) 68 (B.C.C.A.). The evidence shows that the force James Fensom applied to both Craig Burden and Edward Haehnel meets the definition of an “assault”, provided mens rea was present and in the absence of a valid and lawful defence.

46"Bodily harm" means "any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature." In R. v. Moquin (2010), 2010 MBCA 22, 253 C.C.C. (3d) 96 (Man. C.A.), the Manitoba Court of Appeal explains that bodily harm will be proven where the victim experiences pain causing discomfort, provided it is more than trifling and transient and even though it may not impair the person's ability to function on a day-to-day basis. In that case, the trial judge rejected that bruising that lasted several weeks, a sore throat that lasted several days, and a hand injury that prevented the complainant from opening doors for a few days constituted bodily harm, but was reversed on appeal.

47Here, medical evidence was presented of the hurt and pain caused to Craig Burden from the broken rib he sustained in this incident, although I note that medical evidence is not required to establish the existence of bodily harm (R. v. Giroux, 1995 CarswellAlta 1082 (Alta. C.A.)). He took painkillers for a month. His injuries constitute “bodily harm” as defined in the Code.

48The general definition of assault in section 265 of the Code also applies to Edward Haehnel, but in addition, facts must be present that establish James Fensom’s conduct caused a “wounding, maiming, disfigurement or endangerment of life” of the complainant as described in s. 268(1). No endangerment of life occurred here, but the other three factors are present to varying degrees.

49Black’s Law Dictionary, referred to in Gibson, Canadian Criminal Code Offences, at section 6 (D,), defines a “wound” as "an injury to the body of the person or animal, especially one caused by violence, by which the continuity of the covering, as skin, mucous membrane, or conjunctiva, is broken,” and explains that “to maim” a person is to inflict on them “an injury which deprives the person of the use of any limb or member of the body, or that renders him lame or defective in bodily vigour." A break in the skin must occur to constitute wounding: see R. v. Hostetter (1902), 1902 CanLII 113 (NWT SC), 7 C.C.C. 221 (N.W.T. S.C.); R. v. Littletent (1985), 1985 ABCA 22, 17 C.C.C. (3d) 520 (Alta. C.A.).

50Edward Haehnel suffered bodily harm on the evidence presented at this trial, but in addition, the breaking of his skin on the eyebrow above his right eye, a serious cut that required stitches to close the wound, and the residual impairment sustained by Mr. Haehnel, are more than adequate to amount to the actus reus of an “aggravated assault” as defined in the Code. I reach that conclusion on the basis that he was both wounded and maimed as a result of the force exercised against him.

51Whatever euphemistic language may be used to describe the events, the video footage and still photos looked at in sequence and James Fensom’s evidence show that he was kicking Craig Burden as he was on the ground in the foyer of the Club. To my eye, whether it is called a “leg strike” or a “kick”, is immaterial. The action of his leg and foot making contact with Mr. Burden’s side in a forceful way is easily visible in the videotape footage and in the photographs. It is not accidental. It is also plain that he punched Edward Haehnel in the face, and connected with Mr. Haehnel’s right eyebrow, causing it to bleed. Looking at in sequence, the video footage and still photos show Mr. Haehnel’s bleeding eyebrow several seconds after the initial punch connects, as he moves aggressively a second time towards James Fensom, is spun around and out the door of the Club, and as Sam Salerno sends one of the other security people after him with a towel to help the bleeding.

52R. v. Emans (2000), 2000 CanLII 16823 (ON CA), 146 C.C.C. (3d) 449 (Ont. C.A.) shows that the offence of assault causing bodily harm and simple assault are crimes of basic intent only. Importantly, an accused person does not need to be subjectively aware of the risk of causing serious injury. What is required in this province, is that the Crown prove that bodily harm was an objectively foreseeable consequence of the assault, regardless whether the accused intended to cause the harm: see R. v. Nurse (1993), 1993 CanLII 14691 (ON CA), 83 C.C.C. (3d) 546 (Ont. C.A.); R. v. Zhao, 2013 ONCA 293, 297 C.C.C. (3d) 533. Further, Mr. Fensom may be convicted of aggravated assault even without proof that he intended to wound, maim or disfigure Mr. Haehnel: R. v. Godin, [1994] 2. S.C.R. 484.

53In this case, in my view it is plain and obvious that bodily harm was an objectively foreseeable consequence of the conduct of James Fensom relative to both complainants and as such, in the absence of a defence, I am satisfied beyond a reasonable doubt that James Fensom is guilty as charged of assault causing bodily harm against Craig Burden and aggravated assault against Edward Haehnel.

Defences

54James Fensom claims he is not guilty of these offences because he either acted in self-defence and/or did not use excessive force. This requires that I consider whether he acted as he did in self-defence, having regard to the provisions of s. 26 of the Code as they read in 2010, or whether he applied excessive force to Craig Burden and/or Edward Haehnel in the course of ejecting them from the Light Lounge Club that night. It is the 2010 provisions that are relevant. R. v. Bengy, 2015 ONCA 397, 325 C.C.C. (3d) 22 confirms that Parliament did not enact the amended self-defence provisions in 2013 with retrospective effect.

55I note at the outset that it might be contended on the basis of some of the evidence that Mr. Fensom was provoked. In 2010, s. 36 of the Code provided that for the purposes of sections 34 and 35, provocation included provocation by blows, words or gestures. Provocation is not a defence to the assault charges, but it is a mitigating factor to be taken into account in sentencing if the accused is convicted: R. v. Mullin (1990), 1990 CanLII 2598 (PE SCAD), 56 C.C.C. (3d) 476 (P.E.I. C.A.). In that case, the complainant verbally abused the accused for a lengthy period of time. The accused punched the complainant after the final insult. The Court of Appeal upheld the trial judge’s ruling that while provocation was no defence, the sentence of an absolute discharge would not be interfered with: see also R. v. Bruce (1995), 1995 CanLII 2442 (BC CA), 55 B.C.A.C. 62 (B.C.C.A.); R. v. Hunter, 2008 ONCA 691. Provocation may also be relevant here as part of the analysis whether Mr. Fensom acted in self-defence or whether he used excessive force.

56In 2010 Sections 34, 37 and 26 of the Criminal Code read as follows:

Self-defence against unprovoked assault

34. (1) Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself.

Extent of justification

(2) Every one who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if

(a) he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purposes; and

(b) he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm.

57It is the Crown`s position that s. 34(2) is not applicable because Mr. Fensom could not reasonably have perceived himself to be facing grievous bodily harm from either Craig Burden or Edward Haehnel. Further, the Crown’s position is that the defence provided under section 37 of the Criminal Code is not available to Mr. Fensom. Section 37 read as follows:

Preventing Assault

37. (1) Every one is justified in using force to defend himself or any one under his protection from assault, if he uses no more force than is necessary to prevent the assault or the repetition of it.

Extent of justification

(2) Nothing in this section shall be deemed to justify the wilful infliction of any hurt or mischief that is excessive, having regard to the nature of the assault that the force used was intended to prevent.

58Section 26 of the Criminal Code, as it read in 2010 also made clear that even where a person is authorized to use force, they will be held criminally responsible for the use of excessive force. Section 26 read as follows:

Excessive force

26. Every one who is authorized by law to use force is criminally responsible for any excess thereof according to the nature and quality of the act that constitutes the excess.

59Looking first at self-defence, counsel for Mr. Fensom argues that s. 34(1) applies to Mr. Fensom’s dealings with both Mr. Burden and Mr. Haehnel.

60James Fensom admits that after Craig Burden stumbled to the ground in the Club front foyer, he used his leg in a kicking motion, visible on the videotape as a repeated kicking motion, to try to force Craig Burden out the door of the Club. Despite defence assertions that I cannot tell if they were actual kicks or the degree of force that was being used when those kicking blows connected with the sides of Mr. Burden’s ribcage, I reject that contention. I do so for the simple reason that for all its imperfections, the video footage and the still photos looked at in sequence, and the evidence of the accused, all confirm that Mr. Fensom did indeed kick Mr. Burden in the side of his body while he was down on the ground in the entrance foyer to the Club.

61Mr. Fensom claims that Craig Burden threw two punches at his head, before they reached the entry foyer to the Light Lounge Club as he was forcibly ejecting Craig Burden and his group of friends from the Club. As indicated previously, I accept that there would have been some resistance to being ejected given the level of intoxication that was present among Mr. Burden and his group of friends, and there may well have been some provocation that is not remembered going in both directions, but neither am I persuaded that he tried to take a couple of shots at Mr. Fensom in that state. Even if he did, while it might constitute provocation that could affect sentence, it does not, in my mind, mitigate the obvious fact that Mr. Burden was being subdued by a bouncer who was 50-75 or more pounds heavier than he was; a very big man who had not had anything to drink because he was on duty.

62More importantly, the actions in the foyer most certainly followed by 30 seconds or a minute after the alleged punches were thrown, since the throwing of punches is not visible on the videotape. Looked at fairly, however, and taking account of that time gap as short as it may have been, there is nothing in the nature of self-defence that I can find present in the repeated action of kicking Craig Burden in the side of his body while he lay on the floor at the door of the Light Lounge Club.

63First, even if the physical interactions between Mr. Fensom and Mr. Burden that preceded their altercation in the foyer might have given rise to a self-defence right on a strained interpretation of what could justify self-defence actions, a finding I specifically do not make, that preceding interaction had passed by the time they were in the foyer. Mr. Burden is not the aggressor. Instead, he can be seen trying to protect himself from Mr. Fensom’s actions.

64I reject the notion that it becomes acceptable to kick a person like Mr. Fensom was kicking Craig Burden on some security theory of the bouncer protecting himself against the person on the floor. This is excessive, and cannot be accepted as an acceptable response anytime a security person finds they are engaged in a physical dispute. It is uncontrolled, dangerous and excessive. It is argued that Mr. Fensom “had been assaulted” by Mr. Burden, and that Mr. Fensom had not provoked Mr. Burden simply by doing his job in removing him from the club. I agree that the video clearly shows struggling by Mr. Burden, but I reject the contention that Mr. Fensom could reasonably both objectively and, as he testified, subjectively “anticipate a further assault” if he got too close. I agree that it was Mr. Fensom’s job and duty to eject Mr. Burden from the club, but I reject the proposition that when Mr. Burden was on the floor in the club foyer, Mr. Fensom was using his feet to avoid an assault from Mr. Burden.

65However, in my view, s. 34(1) does apply relative to Mr. Fensom’s dealings with Mr. Haehnel. Mr. Haehnel grabbed the back of Mr. Fensom’s shirt in an obvious aggressive manner while Mr. Fensom was removing Mr. Burden. Under the circumstances that were then present in that foyer and visible on the videotape, I agree with the defence that Mr. Haehnel’s action to come to the aid of his friend by grabbing the shirt and pulling at Mr. Fensom would both objectively and subjectively be seen as threatening as a result of which Mr. Fensom could indeed have sustained personal bodily harm. Mr. Fensom testified that he saw a fist. He was justified pursuant to s. 37 to throw a first punch with such degree of force as to prevent Mr. Haehnel in completing a punch to Mr. Fensom.

66There could be no way of knowing how much force Mr. Haehnel intended to use; the action happened very quickly and seemingly caught Mr. Fensom off guard as he was focused on Craig Burden, so Mr. Fensom was entitled to use sufficient force to temporarily disable him. If the single punch by Mr. Fensom necessarily amounted to intent to cause grievous bodily harm, as the Crown argues but which I do not accept, then the anticipated punch from Mr. Haehnel could equally be the same.

67As an employee of the security company and retained contractually to do a job acting under the club manager’s authority, Mr. Fensom was justified in using force to eject a patron if they refused to leave peacefully. The club was required to enforce the requirements of being a LLBO commercial licensee by preventing more consumption of liquor if a patron was too drunk. The club would also have had a duty to remove a patron who was too intoxicated to remain, or who might become a threat to themselves or others. I have little doubt that the evidence could both objectively and subjectively support a decision by Club staff to remove Mr. Burden by force when he declined to leave voluntarily.

68In such circumstances, if a need for self-defence arose, Mr. Fensom would have been entitled to defend himself, but relative to Craig Burden, I cannot see that such a need arose and in my view, against that background, Mr. Fensom used more force than was necessary. It is difficult to find justification for one human being kicking another human being who is in a disadvantaged position on the ground. Mr. Burden was cowering by that point in the altercation. He presented no threat to Mr. Fensom. He simply had to be removed from the club, but in my view, the proper method was not by using so-called “leg strikes” or “kicking”, as we call it in ordinary parlance.

69The law is plain that Mr. Fensom does not need to weigh the force used to a nicety, but in this case he must be found to have intended the consequences of his actions if he used more force than was necessary, even if that included bodily harm caused to Craig Burden.

70I find that Mr. Fensom used considerably more force than was required in this situation to control Mr. Burden and remove him from the premises. Even if he had been justified in using force to prevent himself from being assaulted by Mr. Burden, which appears unlikely on the evidence and was not a realistic threat, at least by the time they got to the entry foyer of the Light Lounge Club, the force used was more than was necessary in the circumstances. In short it was excessive. As such, Mr. Fensom cannot be sheltered from criminal culpability, at least relative to the charge of assault causing bodily harm against Craig Burden by s. 26 of the Code.

71The degree of force used may not be determinable to an exactitude, but here it was plainly sufficient to cause a broken rib. Not surprisingly given their anatomical purpose to protect the lungs and key bodily organs, the medical evidence confirmed that ribs do not break easily. James Fensom himself acknowledged that while it may not have been the maximum amount of force he had available to him, as a large man approaching 300 or more pounds in weight, it was certainly a considerable amount of force.

72I have concluded that there was no legal justification for Mr. Fensom to have kicked Mr. Burden numerous times while Mr. Burden was on the ground. Mr. Fensom’s actions caused the injury that Mr. Burden sustained, specifically the broken rib, bruising and pain. Those injuries constitute bodily harm within the meaning of the Criminal Code. His actions were not in self-defence, and he used excessive force. On that basis, I find that Mr. Fensom is guilty of assault causing bodily harm relative to Craig Burden.

73On the other hand, relative to Edward Haehnel, it appears clear to me that to see a fist moving towards your head would have provided James Fensom with the need to protect himself in self-defence. He did not provoke Mr. Haehnel. Mr. Haehnel’s actions did not entitle Mr. Haehnel to decide unilaterally that he was going to be the “third man in on the fight”, to use a hockey analogy. It was not a provocation. I accept Mr. Fensom's testimony that he saw that fist headed in the direction of his head, and literally, beat Mr. Haehnel "to the punch". It was the infliction of that punch on Mr. Haehnel that caused the injuries he sustained. In my view Mr. Fensom was entitled to take that action, even if, regrettably, it caused injury to Mr. Haehnel that satisfies the definition of wounding or maiming under the Criminal Code.

Conclusion

74On the forgoing basis, I find James Fensom guilty of assault causing bodily harm against Craig Burden but not guilty of aggravated assault against Edward Haehnel. A conviction will be entered on count 1 and an acquittal on count 2.

Michael G. Quigley, J.