ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
J. Nadel, for the Crown
- and -
SCOTT PETERSON
A. Richter, for the defence
HEARD: September 12, 13, 14, 15, 18, 2017, at Brampton
REASONS FOR JUDGMENT
André J.
1The Peel Regional Police Force charged Mr. Scott Peterson on November 3, 2013 with the offence of aggravated assault following an incident at a strip club in Mississauga where he worked as a dancer.
2The Crown called a number of witnesses, most of whom are colleagues of Mr. Peterson, to support its claim that Mr. Peterson intentionally punched Jermall Harvey, a customer at the strip club, thereby causing him to fall to the ground. Mr. Peterson, who did not testify, submits through his counsel, that the Crown has failed to prove beyond a reasonable doubt that he struck Mr. Harvey, and that even if he did, he acted in self-defence. Finally, Mr. Peterson’s counsel insists that there is no evidence linking the alleged assault to the injuries suffered by Mr. Harvey.
SUMMARY OF THE EVIDENCE
3Mr. Harvey went to a friend’s home where he consumed an undetermined amount of alcohol. He and two others then went to Diamonds Strip Club in Mississauga where he consumed more alcohol. Mr. Harvey, who became quite intoxicated, was asked to leave the club following a verbal altercation.
4Once outside, Mr. Harvey had another verbal altercation with two employees of the club. At one point, he approached Mr. Benoit Whissel, a male employee, in an aggressive fashion. Mr. Whissel used Mr. Harvey’s body weight to push him away. Mr. Harvey fell between two cars. He later returned to Mr. Whissel and apologized for his behaviour.
5During this altercation, a female bartender who had witnessed Mr. Harvey’s actions, went inside the club and advised other employees that a male patron was threatening Mr. Whissel. Mr. Peterson then went outside where a small crowd had gathered. Mr. Whissel advised him that everything was fine. Nevertheless, Mr. Peterson, according to witnesses’ accounts, ran through the crowd of persons to approach Mr. Harvey.
6One witness testified that she saw Mr. Peterson punch Mr. Harvey, but under cross-examination, stated that she did not see the actual punch. Other witnesses testified that they saw Mr. Peterson approach Mr. Harvey and raise his fist as if to punch him. However, they testified that they looked away when Mr. Peterson allegedly punched Mr. Harvey. Mr. Peterson later sent a text message to one of the witnesses admitting that he punched Mr. Harvey. He also told a police officer: “The guy was a fucking idiot, he was fucking with my customers. I shoved him.”
7After being punched, Mr. Harvey stumbled a few steps and fell to the ground, striking the back of his head on the concrete pavement.
8Mr. Harvey, who has no recollection of the event, was treated at a local hospital. He testified that the incident has affected his cognitive abilities and that he continues to experience significant pain in his head, neck and body.
9One of Mr. Harvey’s treating doctors submitted a report on consent which indicated that Mr. Harvey suffered a “blunt force impact to the left side of his face”. Photographs of Mr. Harvey’s injuries show that following the incident he had some swelling and redness to his face. The doctor opined that the blow which Mr. Harvey sustained “could have contributed to [his] inter-cranial injuries”.
POSITION OF THE PARTIES
10The Crown submits that:
(1) By his own admission, Mr. Peterson punched Mr. Harvey.
(2) There is no evidence that Mr. Peterson acted in self-defence.
(3) There is credible and reliable evidence that Mr. Peterson’s punch was a contributory cause to Mr. Harvey’s fall and medical evidence links the fall to Mr. Peterson’s actions.
11Mr. Peterson’s counsel submits that:
(1) The Crown has failed to prove beyond a reasonable doubt that Mr. Peterson punched Mr. Harvey;
(2) Even if the Crown succeeds in proving beyond a reasonable doubt that Mr. Peterson punched Mr. Harvey, the defence of self-defence has been made out;
(3) Alternatively, Mr. Harvey engaged in a consensual fight with Mr. Peterson; and
(4) There is no causative link between the punch and the injuries sustained by Mr. Harvey.
ANALYSIS
12There is no dispute that the Crown bears the burden of proving Mr. Peterson’s guilt beyond a reasonable doubt. Concomitantly, there is no dispute that the Crown must prove beyond a reasonable doubt that not only did Mr. Peterson intentionally apply force to Mr. Harvey, he did so in circumstances which were not consensual or did not constitute self-defence. The Crown also bears the onus of proving beyond a reasonable doubt that Mr. Peterson’s actions were a contributing cause of Mr. Harvey’s injuries.
13In my view, this trial raises the following issues:
(1) Has the Crown proven beyond a reasonable doubt that Mr. Peterson punched Mr. Harvey?
(2) Did Mr. Peterson act in self-defence, if it is found that he punched Mr. Harvey?
(3) Were Mr. Peterson and Mr. Harvey engaged in a consensual fight when Mr. Peterson punched Mr. Harvey?
(4) Did Mr. Peterson cause Mr. Harvey’s injuries?
Has the Crown proven beyond a reasonable doubt that Mr. Peterson punched Mr. Harvey?
14Mr. Whissel, known as Stryker, was employed as a floor manager at Diamonds. During the evening he went outside the club for a smoke and saw Mr. Harvey with another male. Mr. Harvey was swearing at a female. Mr. Whissel told Mr. Harvey to go and sleep off his intoxication. Mr. Harvey started swearing at Mr. Whissell and then tried to grab him. Mr. Whissel grabbed Mr. Harvey and threw him down. By then, many persons had left the club. Mr. Whissel told Mr. Harvey “you’re fucked” or words to that effect. The parties have agreed that Mr. Harvey’s injuries were not caused by Mr. Whissel.
15Mr. Whissel testified that Mr. Harvey “calmed down” following this altercation. He testified that at this time Mr. Peterson approached Mr. Harvey. He said the two “collided” and had “a mix up on the ground”. Mr. Harvey got up, walked away and then collapsed. Mr. Peterson quickly returned to the club.
16Mr. Whissel testified that he was in the process of shaking Mr. Harvey’s hand when Mr. Peterson “pushed” Mr. Harvey.
17While Mr. Whissel denied seeing Mr. Peterson punch Mr. Harvey, he testified that Mr. Peterson “rushed” Mr. Harvey and “was trying to punch him”. He heard a “smacking sound” and described Mr. Peterson’s actions as a “sucker punch”. He also testified that Mr. Harvey was “wobbly” after being struck. In re-examination, Mr. Whissel testified that he did not see anyone else make physical contact with Mr. Harvey.
18Ms. Liliana Wilder, a cocktail waitress at the club, testified that she was having a smoke outside the club when she saw Mr. Peterson punch Mr. Harvey. However, I am unable to place any weight on this evidence, given that Ms. Wilder, under cross-examination, denied that she had seen Mr. Peterson punch Mr. Harvey. I am also unable to place much weight on her evidence because of her testimony that she was intoxicated when she witnessed the incident.
19I am also mindful that Ms. Wilder may have tailored her evidence to assist Mr. Peterson. Indeed, Facebook messages between Mr. Peterson and herself, which were tendered as evidence on consent, reveal that Ms. Wilder harboured some feelings for Mr. Peterson.
20Significantly, however, the Facebook messages between Ms. Wilder and Mr. Peterson the day after the incident reveal what happened to Mr. Harvey. Mr. Peterson sent the following message to Ms. Wilder:
Some guy started shit with Stryker so I hit him and he fell down. Pretty simple.
21Mr. Christopher Clement, a personal trainer and club manager, was also outside the club when the incident took place. He saw Mr. Harvey and his companion exchanging words with Mr. Whissel. He heard a door open behind him. He saw Mr. Peterson run past him and into the group of people. Mr. Clement then went inside to check on the bar and returned. He then saw Mr. Harvey on the ground some distance from the location of the initial confrontation with Mr. Whissel.
22Mr. Clement, who was not challenged in cross-examination, further testified that before he went inside the club, he saw Mr. Harvey walking backwards followed by Mr. Peterson and others. He testified that “Stryker was not in any imminent danger” and that he, Mr. Clement, “wasn’t concerned at that point”. Mr. Peterson then came out and pushed his way past Mr. Clement. Mr. Clement testified that he tried to stop Mr. Peterson but was unsuccessful. Mr. Peterson was in front or at least in line with the other persons when Mr. Harvey was struck. Mr. Clement testified that he did not see Mr. Peterson strike Mr. Harvey.
23Mr. Clement later saw Mr. Peterson in the club. Mr. Peterson later texted him and apologized for the incident. Mr. Peterson stated in his text to Mr. Clement:
I just heard Striker was in a fight with some guys up front. My adrenaline and tunnel vision kicked in.
24In re-examination, Mr. Clement reiterated that he saw Mr. Peterson make his way to the front of the crowd. He stated that he saw Mr. Peterson’s shoulders rotate while he was at the front of the crowd. Mr. Clement concluded there was a physical altercation; either a punch or a shove.
25While I find it strange that Mr. Clement stopped shy of testifying that he saw Mr. Peterson punch Mr. Harvey, I find him to have been a very credible witness. He was not challenged or caught in any inconsistency. He was even-handed in his testimony and did not seek to demonize either Mr. Peterson or Mr. Harvey. His evidence, in many respects, is consistent with that of Mr. Whissel and therefore credible and reliable.
26Mr. Choudry Mujynya Kassem had no recollection of the incident despite being present when it occurred. I granted the Crown’s application for the admissibility of his statement to the police for the truth of its contents as past recollection recorded. In his police statement on November 4, 2013, the following verbal exchange took place between Mr. Kassem and the interviewing officer:
Q. The only person, even though you don’t see if that could possibly hit this guy, was Scott?
Ans.: Yes.
Q. No one else could have hit that guy?
Ans.: No.
27Mr. Ronald Harvey was the only independent witness at the scene of the incident. The 66 year old taxi driver saw a bouncer throw out Mr. Harvey from the club. He later saw a bald headed male striking Mr. Harvey. Another person kicked Mr. Harvey when he was on the ground. Mr. Harvey then called 911.
28I have a number of concerns about Mr. Ronald Harvey’s evidence. He testified that he was approximately 120 feet away from the punching. Second, the scene of the incident was quite dark and a car obstructed his view. Third, he initially testified that he saw a male being kicked. He later stated that he assumed that the male had been kicked. Fourth, he testified that the male who struck the victim had a shaved head. However, photographs taken of Mr. Peterson following his arrest the day of the incident showed that he had hair. Finally, Mr. Ronald Harvey did not see anyone kneel down and hold Mr. Harvey after he was punched.
29Cst. Stewart Cullen received a call from Mr. Peterson. He told Mr. Peterson that he would be charged with assault. Mr. Peterson became agitated and told Cst. Cullen that Mr. Harvey “was fucking with my customers, he’s an idiot”. Mr. Peterson also admitted to pushing Mr. Harvey. Defence counsel did not challenge the voluntariness of this statement.
30Mr. Peterson’s counsel submits that little weight should be placed on the officer’s testimony about any conversation he may have had with Mr. Peterson given that it was not recorded verbatim. However, the officer reiterated that he had accurately recorded Mr. Peterson’s statement to him. There is no apparent reason why the officer would have misrepresented what Mr. Peterson said to him. For these reasons, I find Cst. Cullen to be a credible and reliable witness.
31Based on my review of the evidence, I find that there is overwhelming evidence that Mr. Peterson punched Mr. Harvey in the face. Mr. Peterson’s messages to Ms. Wilder and Mr. Clement and his utterance to Cst. Cullen constitute direct evidence that he did so. The evidence of Mr. Whissel, Mr. Clement and Mr. Kassem constitute circumstantial evidence from which the only rational conclusion to be drawn is that Mr. Peterson intentionally punched Mr. Harvey.
Did Mr. Peterson punch Mr. Harvey in self-defence?
32Mr. Peterson’s counsel relies on s. 34(1) of the Criminal Code, R.S.C. 1985, c. C-46 to support his argument that Mr. Peterson acted in self-defence when he punched Mr. Harvey. Defence counsel submits that based on the testimony of bartender Tameka Bromfield-Chisolm, Mr. Peterson had a reasonable perception that force or threats of force were being applied to Mr. Whissel. His conduct was therefore intended to prevent further harm to Mr. Whissel.
33Section 34(1) of the Code provides that:
34 (1) A person is not guilty of an offence if
(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;
(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and
(c) the act committed is reasonable in the circumstances.
34In R. v. Bengy, 2015 ONCA 397, [2015] O.J. No. 2958, at para. 28, the Court of Appeal noted that the test for self-defence has three basic requirements namely:
(i) The accused must reasonably believe that force or threat of force is being used against him or someone else;
(ii) The subjective purpose for responding to the threat must be to protect oneself or others; and
(iii) The act committed must be objectively reasonable in the circumstances.
35To be successful, a trier of fact must be left in a state of reasonable doubt about the existence of all elements of the defence: see R. v. Ryan, 2011 NLCA 9, [2011] N.J. No. 16. Conversely, if the Crown proves beyond a reasonable doubt that any one of the three elements in section 34(1) is lacking, the defence of self-defence fails: see Ryan, supra; R. v. Harris, 2014 ONCJ 401, [2014] O.J. No. 3983, at para. 57.
Evidence Relating To The Defence
36Ms. Bromfield-Chisolm testified that she saw Mr. Whissel throw Mr. Harvey onto a vehicle. Mr. Harvey bounced off the car and stumbled around a bit. She then ran downstairs into the club and notified the security. She told persons inside the club that a fight was taking place which could escalate.
37Defence counsel submits that Ms. Bromfield-Chisolm’s statement caused Mr. Peterson to fear for Mr. Whissel’s safety. He submits that Mr. Peterson’s text message to Mr. Clement that his adrenaline “kicked in” after hearing about the fight involving Mr. Whissel, constitutes cogent proof that Mr. Peterson had acted in self-defence.
38In my view, this argument fails for the following reasons. When Mr. Peterson exited the club, Mr. Whissel’s altercation with Mr. Harvey was already over. According to Mr. Whissel, Mr. Harvey had calmed down and was apologetic to him. Second, by all accounts, Mr. Peterson pushed his way to the front of the group and physically confronted Mr. Harvey. Third, there is no evidence that Mr. Harvey was aggressive with Mr. Peterson, attacked him, or threatened him. Indeed, Mr. Whissel described Mr. Peterson’s actions as a “sucker punch”. Fourth, Mr. Clement testified that he tried to stop Mr. Peterson from confronting Mr. Harvey. Fifth, there is no evidence from Mr. Peterson to the effect that he subjectively feared that Mr. Whissel would be harmed by Mr. Harvey. Lastly, Mr. Harvey was backing away when Mr. Peterson punched him.
39Mr. Peterson’s counsel submits that the injuries on Mr. Harvey’s knuckles constitute proof that he punched Mr. Peterson and confirm that the latter was acting in self-defence. However, there is no evidence before this court that Mr. Harvey punched Mr. Peterson. Furthermore, Mr. Peterson made no mention to Ms. Wilder or Mr. Clement that Mr. Harvey had punched him. Finally, there is no evidence that Mr. Peterson suffered any injury on account of being punched by Mr. Harvey.
40For the above reasons, I find beyond a reasonable doubt, that Mr. Peterson was not acting in self-defence when he punched Mr. Harvey.
41There is no evidence to support the contention that Mr. Peterson punched Mr. Harvey during a consensual fight. Mr. Peterson was the aggressor in this altercation. He rushed out from the club and made his way to the front of the crowd of people towards Mr. Harvey. There is no evidence that Mr. Harvey started the confrontation. To the contrary, Mr. Whissel testified that Mr. Peterson “sucker punched” Mr. Harvey. Furthermore, Mr. Peterson told Mr. Clement that upon hearing that Mr. Whissel was in a fight, his adrenaline and tunnel vision kicked in. Furthermore, Mr. Peterson’s Facebook message to Ms. Wilder is inconsistent with any suggestion that he was in a consensual fight with Mr. Harvey.
42For the above reasons, I find that the Crown has proven beyond a reasonable doubt that Mr. Harvey did not consent to being punched by Mr. Peterson.
Did Mr. Peterson cause Mr. Harvey’s injuries?
43Mr. Harvey suffered swelling and redness to his cheeks, which were clearly visible three days after the incident. He also had a bump at the back of his head.
44Dr. David Ramsay’s report dated September 15, 2017 indicates that Mr. Harvey’s facial injuries were caused by “blunt force impact to the left side of his face”. He also opined “that a punch is one explanation for the facial swelling and redness…” He also further opined that: “I cannot exclude a direct contributory effect from a punch to the injuries inside the cranium, including the brain injuries, but there is no specific medical evidence for such an effect.”
45In Smithers v. The Queen, 1977 CanLII 7 (SCC), [1978] 1 S.C.R. 506, at page 519, the Supreme Court of Canada noted that causation is established if the act of an accused was a contributing cause of the prohibited result, beyond a de minimus range.
46In R. v. Romano, 2017 ONCA 837, [2017] O.J. No. 5703, at para. 28 the Ontario Court of Appeal noted the following:
Without changing that standard, a majority of the Supreme Court of Canada suggested in R. v. Nette, 2001 SCC 78, [2001] 3 S.C.R. 488, at para. 71, that the term “significant contributing cause” is a simpler, more familiar way, of communicating the same concept. Factual causation therefore exists where the contribution by the accused to the prohibited consequence is significant, in the sense described: R. v. Kippax, 2011 ONCA 766, 286 O.A.C. 144, at para. 24, leave to appeal to S.C.C. refused, [2012] S.C.C.A. No. 92.
47Is Mr. Peterson’s punch a “significant contributing cause” of Mr. Harvey’s internal head injuries?
48Mr. Harvey walked or stumbled a short distance before he fell and apparently struck the back of his head on the concrete pavement.
49Mr. Harvey’s unsteadiness on his feet could certainly be attributed to Mr. Peterson’s punch. On the other hand, there is some evidence to suggest that he stumbled before being struck by Mr. Peterson.
50Ms. Bromfield-Chisolm testified that Mr. Harvey stumbled after his confrontation with Mr. Whissel. Furthermore, Mr. Harvey was very inebriated that evening. Indeed, an agreed statement of fact indicates that his blood alcohol content at the time of the incident was approximately three times the legal limit. Additionally, the poor lighting where Mr. Harvey fell and the unevenness of the pavement may well have accounted for Mr. Harvey’s fall. To that extent, I cannot conclude with any degree of certainty that Mr. Peterson’s punch was a significant contributing cause of Mr. Harvey’s injuries.
51Accordingly, I cannot find Mr. Peterson guilty of aggravated assault beyond a reasonable doubt.
52That said, there is no doubt that Mr. Harvey’s facial injuries, specifically the swelling and redness to his cheeks, were the direct result of Mr. Peterson’s punch. These injuries were still visible three days after the incident.
53Are these injuries merely transient and trifling in nature such that they do not, in law, constitute bodily harm?
54Section 2 of the Code provides that:
“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;
55In R. v. Dixon, [1998] B.C.J. No. 774 (B.C.C.A.), Esson J.A. noted that the words transient or trifling “import a very short period of time and an injury of very minor degree which results in a very minor degree of distress”. He further noted at page 332 that “There is no necessary connection at all between the duration of the injury and the question whether it is trifling”. Furthermore in R. v. Rabieifar, [2003] O.J. No. 3833 (C.A.), the Ontario Court of Appeal upheld a trial judge’s decision that bruisings and abrasions interfered with the complainant’s health and comfort and accordingly were injuries more than merely transient or trifling in nature.
56In my view, the bruising and swelling to Mr. Harvey’s face after being punched by Mr. Peterson was more than merely transient or trifling in nature. It is a matter of common sense that the location of these injuries would have interfered with Mr. Harvey’s comfort.
CONCLUSION
57I find Mr. Peterson not guilty of aggravated assault but guilty of the lesser included offence of assault causing bodily harm.
André J.
Released: November 24, 2017
CITATION: R. v. Peterson, 2017 ONSC 7008
COURT FILE NO.: CR 15-1067-00
DATE: 20171124
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
SCOTT PETERSON
REASONS FOR JUDGMENT
André J.
Released: November 24, 2017
