Court File and Parties
Court File No.: 18/117 Date: 2020-01-22 Ontario Superior Court of Justice
Between: Her Majesty The Queen – and – Matthew Legault Defendant
Counsel: N. Keuhn, for the Crown J. Dean, for the Defendant
Heard: December 13, 2019
Reasons for Judgment Justice A. K. Mitchell (ORALLY)
Introduction
[1] Matthew Legault is charged with committing an aggravated assault on Christopher Chrisjohn on October 7, 2018, contrary to s. 268(2) of the Criminal Code of Canada (the “Code”).
[2] Mr. Legault pled not guilty and the matter proceeded to trial. The Crown called one witness. The complainant did not testify. Mr. Legault testified on his own behalf.
Position of the Parties
[3] The Crown’s theory of the case is that Mr. Legault acted as principal, or as party together with his fellow inmates, to perpetrate an aggravated assault on Mr. Chrisjohn as retribution for a wrong alleged committed by Mr. Chrisjohn against Mr. Legault years prior.
[4] The accused says his physical altercation with Mr. Chrisjohn was consensual and denies any group “plan” to assault Mr. Chrisjohn.
Evidence
Agreed Statement of Facts
[5] At the commencement of trial, the parties filed an Agreed Statement of Fact wherein it was agreed:
(i) The alleged offence occurred on October 7, 2018 at Elgin-Middlesex Detention Centre (“EMDC”) located in the City of London in Middlesex Region;
(ii) Both Mr. Legault and Mr. Chrisjohn were inmates on Range 2 at EMDC on October 7, 2018; and
(iii) As a result of the assault on Range 2 on October 7, 2018, Mr. Chrisjohn suffered nasal bone fractures with overlying soft tissue thickening, as outlined in the CT Consultation Report.
[6] The accused admits Mr. Chrisjohn’s injuries meet the legal definition of “bodily harm”.
Video Surveillance Evidence and the Evidence of Sean Somerton
[7] At the time of the incident, Sargent Sean Somerton was manager of protective custody for Range 2 at EMDC. At trial, Sargent Somerton reviewed video surveillance taken from cameras positioned at 3 different locations in Range 2. These cameras recorded the activity in Range 2 over a span of 34 minutes during which time the incident forming the subject matter of this charge took place. One of these cameras was positioned facing the open doorway to the bathroom located within Range 2.
[8] Sargent Somerton sketched the layout of the bathroom and this sketch was made an exhibit. The bathroom is an “L” shape. Only the sink and the area immediately surrounding the sink are visible to the camera. A mirror is mounted over the sink. The toilet and shower stalls are located to the left of the entranceway to the bathroom in an area not visible to the camera lens.
[9] Sargent Somerton identified a number of the inmates observed in the video surveillance. He identified the accused, the complainant, Bradley Hilliard, Michael Peltier, Shane Simmers, Adam Trotter and Kenneth Rowe.
[10] Sargent Somerton described the activities depicted in the video surveillance. The video recording begins with Mr. Hilliard handing Mr. Chrisjohn a bar of soap and directing him towards the bathroom. Mr. Chrisjohn proceeds to enter the bathroom whereupon he is grabbed by Mr. Legault and pushed out of view of the camera into the area of the shower and toilet stalls. Mr. Peltier was also in the bathroom at the time Mr. Chrisjohn entered.
[11] Mr. Hilliard is observed following Mr. Chrisjohn into the bathroom. During this time, Mr. Trotter is seen walking between the entranceway and the general area where other inmates are seated or standing watching television.
[12] Approximately 1 and 1/2 minutes after Mr. Chrisjohn enters, Mr. Legault exits the bathroom. The accused appears uninjured. Mr. Legault is observed removing his shorts and putting on a t-shirt and a jumpsuit. Mr. Hilliard embraces Mr. Legault while he is changing. Mr. Legault then returns to the bathroom holding his shoes in his hands.
[13] As Mr. Legault re-enters the bathroom, Mr. Chrisjohn can be seen standing at the sink washing his face which appears to be injured. There is a second altercation between Mr. Legault and Mr. Chrisjohn in the sink area. Mr. Legault is observed striking and kicking an individual. Mr. Legault exits the bathroom for a second time and wipes his shoes with a towel. An unidentified inmate ruffles Mr. Legault’s hair as he exits. Another inmate squeezes his shoulder as he is wiping his shoe.
[14] Mr. Chrisjohn is in the bathroom for a total of 34 minutes. From time to time during this period, he is observed in the sink area. At one point in the video, Mr. Peltier, who is standing beside the sink, is observed directing Mr. Chrisjohn to return to the toilet and shower stall area off camera. Throughout the duration of the video, Mr. Legault, Mr. Hilliard, Mr. Simmers, Mr. Peltier and Mr. Rowe enter and exit the bathroom at various times and in various combinations. Each of these individuals is observed at times looking into the stall area from the doorway and at other times entering the stall area out of sight of the camera lens. During this time, Mr. Legault is observed washing his hands at the sink at various times.
[15] Mr. Trotter is observed pulling other inmates who appear curious about the activities in the bathroom back to the general seating area. He is also observed standing at the doorway watching the activities in the toilet and shower stalls area.
[16] Mr. Legault is observed using a towel to clean his hands and disposing of this towel in a garbage box.
[17] At another point in the video, the accused is seen speaking with Mr. Peltier who is using the phone. Mr. Legault is seen kissing Mr. Peltier on his forehead and immediately thereafter proceeding to similarly kiss each of Mr. Hilliard, Mr. Trotter and Mr. Rowe who are standing nearby.
[18] Approximately a half hour after entering the bathroom, Mr. Chrisjohn is seen at the sink washing his face. His face is visibly injured by this time. Immediately upon exiting the bathroom, Mr. Chrisjohn is attacked by Mr. Trotter. Mr. Trotter repeatedly strikes Mr. Chrisjohn’s face and head areas with his fists and knee. To protect himself, Mr. Chrisjohn covered his face with his arms and fell to the ground.
[19] As Mr. Trotter continues his assault, the accused is observed moving quickly from the back of the range. He retrieves Mr. Trotter’s eyeglasses from the ground and returns them to him and gives Mr. Trotter a shoulder squeeze. Officers arrive within seconds of Mr. Trotter’s attack on Mr. Chrisjohn. Mr. Chrisjohn and Mr. Trotter are removed from the range. Mr. Chrisjohn’s injuries are photographed and he is taken by ambulance to hospital.
[20] Mr. Chrisjohn advises EMDC officers that he wishes police to lay charges against the individuals involved in the incident.
[21] During cross-examination Sargent Somerton acknowledged that 5 or 6 inmates were involved in the assault on Mr. Chrisjohn. He acknowledged that disputes among inmates are often resolved in bathrooms where there are no cameras recording the activity of the inmates. He says that inmates typically do their own “policing” and deal with their internal disputes and problems on their own without the involvement of authorities. Sargent Somerton testified that there is a “code of silence” at EMDC and it is very rare for an inmate to want to press charges against another inmate. In most instances the victim will not sign the paperwork necessary to initiate a police investigation.
[22] Sargent Somerton was of the view that when Mr. Trotter attacked Mr. Chrisjohn as he exited the bathroom it was pre-meditated. He pointed to the video evidence of Mr. Trotter pacing and waiting for Mr. Chrisjohn to exit. Sargent Somerton admitted during cross-examination that he could not recall the severity of Mr. Chrisjohn’s injuries before the Trotter altercation. He said that, aside from Mr. Chrisjohn, the other inmates present in the unit at the time of the incident were not injured.
[23] Sargent Somerton agreed that congratulatory gestures of the kind observed on the video between Mr. Legault and the other inmates were very common among inmates. He said that Mr. Legault was known to him prior to this incident and that he had been involved in other altercations – both as victim and as perpetrator.
Evidence of Mr. Legault
[24] Mr. Legault testified on his own behalf. He said he knew the complainant prior to both men being housed together in Range 2. Mr. Legault says that the complainant had stolen his clothes from the apartment of a mutual friend. When he arrived on Range 2, Mr. Legault says he recognized Mr. Chrisjohn and confirmed his identity by asking him his name. He says that aside from this single exchange, no further conversation took place between the two men prior to the incident in the bathroom.
[25] Mr. Legault says he advised both Mr. Peltier and Mr. Hilliard about Mr. Chrisjohn having stolen his clothes and that he intended to fight him.
[26] Mr. Legault testified as to his recollection of the events observed on the video surveillance. He says that as he was exiting the bathroom, Mr. Chrisjohn entered unexpectedly. Realizing it was Mr. Chrisjohn, Mr. Legault decided to confront him because they were in the bathroom which was “off-camera” and it was an opportunity to fight him which he had intended to do. Mr. Legault testified he said to Mr. Chrisjohn “we’re going to fight” to which Mr. Chrisjohn responded, “alright, let’s do this”. Mr. Legault says the fight was consensual.
[27] The accused recalls throwing the first punch. He says he threw a couple of punches at Mr. Chrisjohn and Mr. Chrisjohn threw a couple of punches back. He says that the entire first physical altercation between them lasted less than a minute and Mr. Chrisjohn remained standing the entire time.
[28] Mr. Legault claims he suffered a black eye and a swollen lip in the fight. He says he observed Mr. Rowe, Mr. Trotter, Mr. Hilliard and Mr. Peltier each assault Mr. Chrisjohn in the bathroom following his initial altercation with the complainant. He testified that Mr. Chrisjohn spent a portion of the 30 minutes in the bathroom showering.
[29] Mr. Legault testified to a second altercation occurring in the area of the sink and partially captured on the video surveillance. Mr. Legault recalls that he was washing his hands when the complainant approached him from behind. He turned around to face Mr. Chrisjohn and Mr. Chrisjohn spat blood at him which landed on his neck. In retaliation, Mr. Legault says he punched and kicked Mr. Chrisjohn.
[30] During his testimony, Mr. Legault gave several denials. He denies:
(a) asking any of Mr. Peltier, Mr. Rowe, Mr. Trotter and/or Mr. Hilliard to assist him in assaulting Mr. Chrisjohn;
(b) making plans for a group assault on Mr. Chrisjohn;
(c) Mr. Chrisjohn telling him he did not want to fight;
(d) causing the injuries to Mr. Chrisjohn visible in the photographs and confirmed by the medical reports;
(e) trying to hide evidence;
(f) he was friends with any of Mr. Trotter, Mr. Rowe, Mr. Hilliard and/or Mr. Peltier at the time of the incident and claims they were just “other inmates” and mere acquaintances; and
(g) the numerous instances of high-fiving, back-patting, shoulder-squeezing and kissing were congratulatory in nature.
Analysis
Legal Framework - Aggravated Assault
[31] To find Mr. Legault guilty of aggravated assault, Crown counsel must prove each of the following essential elements beyond a reasonable doubt:
i. that Mr. Legault intentionally applied force to Mr. Chrisjohn;
ii. that Mr. Chrisjohn did not consent to the force intentionally applied by Mr. Legault; and
iii. that the force applied by Mr. Legault wounded, maimed, disfigured or endangered the life of Mr. Chrisjohn.
[32] In support of its theory of the case, the Crown relies on s. 21 of the Code which allows the court to find an accused guilty of an offence as “aider or abettor” where the injuries of the complainant were caused by one or more individuals acting in concert and those collective efforts brought about the complainant’s injuries. The Crown says that Mr. Legault is liable for the totality of Mr. Chrisjohn’s injuries both as principal and as party.
W. D. Analysis – Mr. Legault’s Evidence
[33] Mr. Legault chose to testify. He was under no obligation to do so. Regardless of his testimony, the burden of proof never transfers to Mr. Legault. At all times, it is the Crown who must prove beyond a reasonable doubt that Mr. Legault committed an aggravated assault on Mr. Chrisjohn whether as principal or as a party to a group assault.
[34] Because of Mr. Legault’s testimony, I must analyse the evidence using the three-pronged approach established in R. v. W.(D.). This approach is as follows:
First, if I believe Mr. Legault’s evidence that he did not commit this offence whether as principal or party to the offence, I must acquit him.
Second, if I do not believe his testimony but I am left in reasonable doubt by it, I must acquit him.
Third, even if I am not left in doubt by Mr. Legault’s evidence, I must ask myself whether, based on the totality of the evidence which I do accept, I am convinced beyond a reasonable doubt by that evidence of Mr. Legault’s guilt of aggravated assault, whether as principal or as party to the assault.
[35] I will first assess the reliability and credibility of Mr. Legault’s evidence. Counsel for Mr. Legault submits that the accused was not “shaken” on cross-examination and that his evidence went largely unchallenged. I disagree. Numerous internal and external inconsistencies presented themselves during both direct and cross-examination. Specifically,
(a) Mr. Legault claims he was injured by Mr. Chrisjohn during their fight yet Sargent Somerton testified none of the other inmates was injured during the incident. In addition, upon review of the video surveillance, no injuries are visible on Mr. Legault;
(b) Mr. Legault denies that Mr. Trotter, Mr. Peltier, Mr. Rowe or Mr. Hilliard were friends at the time of the incident and described them as “just people he knew on the range”. Yet he was unable to explain why he kissed each of them and displayed other signs of affection and friendship with them to the exclusion of the other inmates present on Range 2;
(c) He claimed encountering Mr. Chrisjohn in the washroom was just a product of coincidence. Yet he could not explain why Mr. Peltier was also in the washroom at the same time nor explain why Mr. Hilliard handed Mr. Chrisjohn a bar of soap and directed him to the washroom at the very same time Mr. Legault was exiting the bathroom;
(d) The span of time, beginning when Mr. Chrisjohn enters the bathroom and ending when Mr. Legault is observed punching Mr. Chrisjohn, is two seconds. During these 2 seconds, Mr. Legault claims he recognized the complainant, decided he wanted to fight the complainant, propositioned the complainant to fight and the complainant responded: “Let’s go”. I find it impossible for Mr. Legault to have formed those thoughts and had that exchange with Mr. Chrisjohn in a span of only two seconds;
(e) During direct examination, Mr. Legault made no mention of hitting the wall of the bathroom during the altercation with Mr. Chrisjohn. During cross-examination, Mr. Legault is questioned about the injuries to his hand and he denies they were caused when he punched the complainant. It was only during cross-examination that he says his injuries were caused when he hit a wall with his fist. When describing the injuries to his hand, Mr. Legault initially indicated he had injured the tip of his finger and then changed his evidence to say instead that his lower knuckle was injured;
(f) There was no independent, objective evidence that Mr. Chrisjohn was showering during the 30 minutes he was in the bathroom as the accused testified; and
(g) Mr. Legault cannot recall the reason he is observed wiping his shoes and washing his hands. He denies he is cleaning his shoes and hands of Mr. Chrisjohn’s blood. I do not accept his denial or accept his lack of recollection. The only inference which can be drawn in the face of Mr. Legault’s admission of having punched and kicked Mr. Chrisjohn is that Mr. Legault is cleaning Mr. Chrisjohn’s blood from his shoes and hands.
[36] To the extent his evidence was intended to be exculpatory, Mr. Legault’s testimony was incredible and wholly unbelievable. I do not believe Mr. Legault’s denials nor does his evidence leave me with a reasonable doubt as to his guilt.
[37] Turning now to the last prong of the W.(D.) test. That is, has the Crown proven beyond a reasonable doubt, on the basis of the totality of the evidence which I do accept, that Mr. Legault is guilty of aggravated assault as principal and/or as aider or abettor to the continuous assaults by Mr. Trotter, Mr. Peltier, Mr. Hilliard and/or Mr. Rowe?
[38] The Crown’s case in support of a conviction for aggravated assault relies entirely on the video surveillance evidence and the evidence of Sargent Somerton. As I earlier indicated, the complainant did not testify.
[39] In considering the reliability of the video evidence, I note that the continuity and accuracy of the video surveillance has been admitted. Identification of the various individuals by Sargent Somerton was not disputed. Furthermore, it was not disputed that the video accurately depicts the incident forming the subject matter of the charge before the court. The images are clear and not distorted. The lighting in Range 2 is bright. Having reviewed the video in detail and at painstaking frame-by-frame pace, I find the video evidence, in its entirety, to be reliable.
Liability for Mr. Chrisjohn’s Injuries as Principal
[40] The actus reus of aggravated assault requires proof beyond a reasonable doubt that the accused assaulted Mr. Chrisjohn: that is, that he applied force to him; that the force was intentional; and that the force was applied without the consent of Mr. Chrisjohn.
[41] Mr. Legault admits to intentionally applying force to Mr. Chrisjohn on two separate occasions. He admits to punching Mr. Chrisjohn in the head and face areas during their first altercation which took place in the area of the stalls and to punching and kicking Mr. Chrisjohn during their second altercation which took place in the area of the sink. However, Mr. Legault says that with respect to both incidents, the complainant consented to the force he applied. That is, Mr. Chrisjohn willingly and voluntarily engaged in a physical altercation with Mr. Legault as a means of settling their past differences. Mr. Legault says the second incident was merely a continuum of their initial altercation.
[42] Mr. Chrisjohn was detained by Mr. Peltier and others in the washroom for 30 minutes during which time he was beaten by Mr. Legault and the other inmates. There was no independent evidence Mr. Chrisjohn remained in the washroom for 30 minutes of his own free will. At all times, one or more of Mr. Peltier, Mr. Rowe, Mr. Legault and Mr. Hilliard was with Mr. Chrisjohn in the bathroom. The Crown established that the time elapsed from when Mr. Chrisjohn entered the washroom to when Mr. Legault’s assault began was 2 seconds. As earlier noted in these reasons, I have found that 2 seconds is insufficient time for Mr. Legault to have made the request to fight and for Mr. Chrisjohn to have provided his express consent to the application of force by the accused.
[43] Aside from Mr. Legault’s evidence on the issue of consent which I do not accept, there is no evidence Mr. Chrisjohn consented to Mr. Legault’s application of force. Merely pointing out the evidence of Sargent Somerton to the effect that inmates routinely settle their differences through use of force does not give Mr. Legault’s evidence a ring of truth in this case. Quite the opposite. Contrary to general practice among inmates, Mr. Chrisjohn did in fact request police involvement and the laying of charges against the accused and other inmates. This evidence strongly supports the finding and I so find that Mr. Chrisjohn did not consent to the application of force by Mr. Legault by the other inmates.
[44] The mens rea for aggravated assault requires proof beyond a reasonable doubt that a reasonable person in the same circumstances would have inevitably realized that the force applied would put Mr. Chrisjohn at risk of suffering some kind of bodily harm. Without the consent of Mr. Chrisjohn, the only inference that can be drawn from the admitted use of force by Mr. Legault is that he knew Mr. Chrisjohn was at risk of suffering bodily harm when he punched and kicked him repeatedly. I find that the very purpose of engaging Mr. Chrisjohn in a fight was to cause him bodily harm as retribution for having stolen Mr. Legault’s clothes years prior. This element of the offence is easily satisfied beyond a reasonable doubt.
[45] The more difficult question to be resolved here is whether the force applied by the accused can be causally connected to Mr. Chrisjohn’s injuries visible at the conclusion of the video surveillance.
[46] During his examination in chief Mr. Legault described the injuries he inflicted on Mr. Chrisjohn as “a fat lip and a black eye”. I do not accept the blood on Mr. Legault’s hands and the blood on his shoes, which he is seen wiping clean, was Mr. Legault’s own blood. I find that Mr. Legault was cleaning the complainant’s blood from his hands and shoes resulting from injuries he, personally, inflicted on the complainant.
[47] Has the Crown established beyond a reasonable doubt that Mr. Legault is guilty of aggravated assault as principal? To constitute an aggravated assault, the resulting injury must have caused wounding, maiming, disfiguring or endangerment of Mr. Chrisjohn’s life. The Crown says the assault by Mr. Legault on Mr. Chrisjohn caused wounding. “Wounding” means injuring the victim in a way that breaks, cuts, pierces or tears the skin or some part of his body and is more than trifling, fleeting or minor (such as a scratch). (See R. v. Littletent, [1985] A.J. No. 256 (C.A.) at para 2; and R. v. Wong, 2006 CarswellOnt 3407 (C.A.) at para. 13).
[48] The Crown points specifically to the gash between Mr. Chrisjohn’s eyes. Having reviewed the medical records and the photographs (both electronic and hardcopy), I am satisfied that the injuries suffered by Mr. Chrisjohn meet the legal test for “wounding” and find that the gash observed between his eyes is far more than trifling and far more egregious than a scratch.
[49] However, I further find that the Crown is unable to establish beyond a reasonable doubt that this gash or the other injuries depicted on Mr. Chrisjohn’s face and upper body immediately after being removed from the range, were caused by Mr. Legault as principal. Mr. Trotter’s vicious attack on Mr. Chrisjohn upon him exiting the washroom leave me with a reasonable doubt as to the accused’s guilt of the offence of aggravated assault as principal.
[50] Assault causing bodily harm is a lesser and included offence of aggravated assault. “Bodily harm” is any hurt or injury that interferes with the complainant’s health or comfort. It has to be more than something that is just brief or fleeting, or minor in nature. And it must result from the force that Mr. Legault applied.
[51] The video evidence of the force of the blows and kicks delivered to Mr. Chrisjohn by Mr. Legault coupled with the evidence of the blood on Mr. Legault’s hands and shoes leads me to conclude that the injuries Mr. Legault inflicted on Mr. Chrisjohn during the first and second incidents amount to “bodily harm”. Therefore, Mr. Legault is liable as principal for the lesser and included offence of assault causing bodily harm.
Liability for Mr. Chrisjohn’s Injuries as Party to the Offence (as Aider or Abettor)
[52] Turning now to the issue of whether Mr. Legault is liable for the offence of aggravated assault as aider or abettor.
[53] Section 21(1) of the Code provides that everyone is a party to an offence who: actually commits it; does or omits to do something for the purpose of aiding any person to commit it; or abets any person in doing it. "Aiding" refers to giving some assistance in the commission of the crime, while "abetting" conveys the sense of "encouraging, instigating, promoting, or procuring the crime to be committed. (Kent Roach, Criminal Law, 3rd ed. (Toronto: Irwin Law, 2004) at p. 129).
[54] I was referred to the leading authority of R. v. Briscoe. In Briscoe, the Supreme Court of Canada explained the liability of aiders and abettors as:
13 Canadian criminal law does not distinguish between the principal offender and parties to an offence in determining criminal liability. Section 21(1) of the Criminal Code makes perpetrators aiders and abettors equally liable…
The person who provides the gun, therefore, may be found guilty of the same offence as the one who pulls the trigger. The actus reus and mens rea for aiding or abetting, however, are distinct from those of the principal offence.
14 The actus reus of aiding and or abetting is doing (or, in some circumstances, omitting to do) something that assists or encourages the perpetrator to commit the offence. While it is common to speak of aiding and abetting together, the two concepts are distinct, and liability can flow from either one. Broadly speaking, “[t]o aid under s. 21(1) (b) means to assist or help the actor… . To abet within the meaning of s. 21(1) (c) includes encouraging, instigating, promoting or procuring the crime to be committed… .
[55] As was noted in R. v. McLeod, [1982] O.J. No. 59 (C.A.), the mere presence or passive acquiescence standing alone is not enough to constitute aiding and abetting. Rather, the intentional rendering of assistance or encouragement in the offence is required. That said, a person may be taken to be aiding and abetting if with the intention of giving assistance he is near enough to provide it should the occasion arise.
[56] Defence counsel argued that evidence of the “planning”, itself, is necessary for a conviction under s. 21 of the Code. I disagree. All that is necessary is evidence of a plan. There is ample evidence to establish beyond a reasonable doubt a planned group assault of which Mr. Legault was an integral part.
[57] I must consider the totality of the evidence. In particular, the video evidence tells a vivid and accurate tale. The images do not lie. While each of the various interactions among the inmates depicted on the video on its own may be open to interpretation, taken together these interactions lead to one inevitable conclusion. That is, that the assaults on Mr. Chrisjohn, including the assaults by Mr. Legault, were part of a group attack. I am convinced beyond a reasonable doubt the 34-minute attack on Mr. Chrisjohn depicted in the video surveillance was planned, deliberate and orchestrated by a group of individuals. That group consisted of, at a minimum, Mr. Legault, Mr. Trotter, Mr. Hilliard, Mr. Peltier and Mr. Rowe.
[58] I arrive at this conclusion having regard to the following evidence:
(a) During the trial, both Crown and defence counsel advised me that Mr. Trotter, Mr. Peltier, Mr. Hilliard and Mr. Rowe had each been charged and convicted of offences relating to their involvement in this same incident. Sargent Somerton also testified to this effect. Although I have no formal proof of these convictions or of the offence each of these individuals was convicted, I am prepared to find, as fact, that, at a minimum, each of these individuals was convicted of assault on Mr. Chrisjohn relating to the incident.
(b) Mr. Legault admitted he observed each of Mr. Trotter, Mr. Peltier, Mr. Rowe and Mr. Hilliard assault Mr. Chrisjohn in the washroom but cannot recall saying or doing anything while these assaults were ongoing. Mr. Legault also says he cannot recall or did not know what was going on in the bathroom after he exited the bathroom following his initial assault. Even if I was to accept this evidence which I do not, it is no defence to s. 21 of the Code. In Briscoe, the Supreme Court noted that: “[w]ilful blindness does not define the mens rea required for particular offences. Rather, it can substitute for actual knowledge whenever knowledge is a component of the mens rea. The doctrine of wilful blindness imputes knowledge to an accused whose suspicion is aroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make those inquiries”. Briscoe, at para. 21. Mr. Legault should have been suspicious of what was happening in the washroom after he had exited, and Mr. Chrisjohn remained. Moreover, his deliberate decision not to investigate or inquire as the others assaulted Mr. Chrisjohn constitutes wilful blindness.
(c) Mr. Legault has admitted to being more than merely present or passively acquiescing to the assaults on Mr. Chrisjohn. The initial physical altercation between Mr. Legault and Mr. Chrisjohn was the first in a string of assaults perpetrated against the complainant during the 34-minute incident. The first step in the “plan” was to lure the complainant into the washroom where he could be repeatedly assaulted by members of the group starting with Mr. Legault. I do not accept the evidence of Mr. Legault that Mr. Hilliard was simply handing Mr. Chrisjohn a bar of soap to facilitate Mr. Chrisjohn’s shower as new inmate on the range. Mr. Hilliard was speaking at the phone and interrupted his telephone conversation to direct Mr. Chrisjohn to the bathroom where Mr. Hilliard knew Mr. Peltier and Mr. Legault were “lying in wait”. It was no coincidence that Mr. Legault was at the entrance to the washroom at the very moment Mr. Chrisjohn entered.
(d) Upon entering the washroom, two seconds elapse before Mr. Legault is observed assaulting Mr. Chrisjohn. After this initial assault, Mr. Peltier is observed at the sink directing the complainant to return off-camera to the stalls area. We observe Mr. Trotter guarding the door to prevent access by other inmates. During the next 30 minutes, each of the group of 5, including Mr. Legault, is observed entering and exiting the washroom at various times and in various combinations.
(e) Mr. Legault is congratulated by the other members of the group after the initial assault and he, in turn, shows his appreciation towards and encouragement of the other members of the group with kisses, shoulder squeezes and embraces. Surely, it is not mere coincidence that Mr. Legault displays affection and appreciation towards only those inmates involved in the assault on Mr. Chrisjohn. He shows no such similar affection and appreciation towards those inmates who do not participate in the assaults on Mr. Chrisjohn. The affection and appreciation provided to and among the members of the group are evidence of a successful joint enterprise – being the continuous assault of Mr. Chrisjohn.
(f) No explanation was provided by Mr. Legault for returning repeatedly to the washroom after his initial assault on the complainant. His behaviour suggests the assault was continuous among the 5 inmates. No explanation was provided for wiping his shoes, repeatedly washing his hands or changing his clothes. The only inference that can be drawn from his behaviour is that he was part of the group attack and was engaged in the group assault from his initial assault until Mr. Chrisjohn was removed from the range immediately after the final assault by Mr. Trotter.
(g) Sargent Somerton testified that Mr. Trotter attempted to take full blame for Mr. Chrisjohn’s injuries. This behaviour only makes sense in the context of a planned group assault. It is evident from the video that Mr. Trotter was lying in wait outside the door and brutally attacked Mr. Chrisjohn as he exited. This conduct is consistent with a planned group attack and Mr. Trotter agreeing to be the “fall guy”. To arrive at any other conclusion defies common sense.
[59] Mr. Legault’s behaviour considered in the context of all of the evidence is consistent with a finding that Mr. Legault instigated, promoted and encouraged the group assault on Mr. Chrisjohn which took place on October 7, 2018.
Disposition
[60] For all these reasons, I conclude that the Crown has established beyond a reasonable doubt that Mr. Legault is liable, pursuant to s. 268(2) and s. 21(1) of the Code, for the aggravated assault of Mr. Chrisjohn. Therefore, a conviction will be registered on the single count on the indictment for the offence of aggravated assault.