R v Hamilton, 2016 ABQB 325

Court of Queen ’ s Bench of Alberta Citation: R v Hamilton, 2016 ABQB 325 Date: 20160615 Docket: 150810349S1 Registry: Edmonton Between: Her Majesty the Queen - and - Justin Hamilton Accused _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice S.J. Greckol _______________________________________________________ Appeal from the judgement of the Honourable Judge Fraser Dated the 21 st day of September, 2015

( Docket: 150810349S1) I. Introduction [ 1 ] Justin Hamilton was charged that: On March 20, 2015 at St. Albert, Alberta did, in committing an assault on Nolan Eybergen, cause bodily harm to him, contrary to

Section 267 (

b) of the Criminal Code . [ 2 ] On September 21, 2015, Justin Hamilton was convicted of assaulting a sixteen-year-old male, Nolan Eybergen. This assault was perpetrated in angry response to the egging of his house by a person or persons who remain unknown. [ 3 ] Mr. Hamilton stood trial on one count of assault causing bodily harm, contrary to s 267(

b) of the Criminal Code . He was found not guilty of assault causing bodily harm, but guilty of simple assault. [ 4 ] At trial, the court heard from four witnesses, the victim, Nolan Eybergen; his friend, Jack Chelkowski; the investigating officer, Cst. Steven Giavedoni; and the Accused, Justin Hamilton. [ 5 ] The trial judge rejected the evidence of Jack Chelkowski and that of the investigating officer, Cst. Giavedoni. The trial judge convicted Mr. Hamilton of simple assault based on the evidence of Mr. Eybergen and Mr.

Hamilton. [ 6 ] After conviction, the Crown sought a sentence of 90 days in gaol while Counsel for Mr. Hamilton sought a fine coupled with a period of probation. The trial judge imposed a sentence of a $750 fine plus the victim fine surcharge. II. Facts [ 7 ] Nolan Eybergen was a high school student when this event occurred. On Mach 20, 2015 he was at his home in St. Albert with four friends while his parents were away. He and two of his friends were drinking alcohol, with the permission of his parents, though the other two were not drinking as they were driving that evening. [ 8 ] Mr.

Eybergen acknowledged having consumed a beer and two shots of Bols over an hour and one half. Just after 11:00 pm, he and one of his friends went for a walk in the neighborhood. Mr. Eybergen testified that at a nearby street corner he jumped up and hit a stop sign to see if he could do it. Though Mr. Hamilton disputed that he could reach it, nothing in the decision turns on this difference. [ 9 ] Just after this, Mr. Hamilton came out of his house, swearing at the youths, calling them vulgar names, including “little fuckers”, and questioning what they were doing. The two boys ran off. [ 10 ] Mr.

Eybergen testified that he hid in the bushes, but upon realizing that he was still being followed, he crawled under a Jeep parked in the street. He heard his pursuer speaking on the phone to police and emerged from under the Jeep. Mr. Eybergen testified that Mr. Hamilton struck him in the head and this was the last thing he remembered until he came to with his friends holding him up and the police in attendance. He testified that Mr. Hamilton apologized to him and said that he had the wrong guy. Mr. Eybergen adamantly denied egging Mr. Hamilton’s house. Mr.

Eybergen testified that he saw a doctor following the incident. [ 11 ] Mr. Eybergen testified about his injuries. He described that his nose was “gushing blood”. He had a bump on his head which he treated by applying ice to it. The bump started to go down after about four days. He had a fat lip for approximately three days. He said he had a mild concussion, symptomized by recurring headaches for the next week. The headache interfered with his school work and caused forgetfulness. He described also that his short-term memory “…wasn’t fantastic”. [ 12 ] Mr. Hamilton described the events of the evening as well.

He said that three eggs were thrown at his house at about 9:30 pm. He went outside and saw a truck. He gave chase, and struck at the mirror of the truck as it went speeding off. He reported this incident to police by calling 911. He stated “…if they come back again they’ll be calling you, not me this time.” [ 13 ] Mr. Hamilton testified that he heard eggs hitting his house a second time, at about 11:00 pm. He went out into the street again. He agreed in cross examination that he was so upset he went after the first two people he saw.

He acknowledged coming out of his house yelling, swearing and using the work “fucker”. [ 14 ] Mr. Hamilton testified that he chased the person who was running away, he approached the Jeep where the person was hiding and said words to the effect “I got you, you little fuckers”. He testified that the person under the Jeep tried to escape and swung at his legs. Mr. Hamilton testified that the person was not standing when he hit him, and he believed he struck him two or three times. [ 15 ] The trial judge rejected the evidence of Mr. Chelkowski due to the amount of alcohol he had consumed.

The trial judge found that the assault was proved but that the injuries to Mr. Eybergen did not amount to bodily harm. His reasons are as follows: Now, the second straightforward issue for me to resolve is the issue of bodily harm. Both counsel have commented on it and the law that is applicable, so I ask myself did the victim suffer injuries that were more than transient, more than trifling in nature and affected the victim’s quality of life. I got the distinct impression, as obviously defence counsel did, that the injuries weren’t particularly onerous and serious.

That sure, there was a bloody nose -- that’s been dealt with in case law before, a bloody nose does not equal bodily harm -- a cut lip and a bump which may or may not have been concussed, resulting in a concussed head. I believe to conclude, as Nolan did, that he

had a concussion would quite frankly require some medical evidence to substantiate that, and that is not before me. Looking at all of theevidence in relation to injuries, I have a reasonable doubt as to whether Mr. Eybergen suffered bodily harm and that evidence is given tothe accused. The third aspect is the final way of looking at all the evidence aside from the evidence of the constable. I cannot say in the circumstancesthat the accused indicated to the constable that he hit the wrong man or had the wrong man.

The way the constable somewhat cavalierlywent about his investigation just because of the way the nature of the investigation was, I cannot rely on that as having actuallyhappened. Now, I must look at, in this third aspect of my judgment, the reliance on a W.(D.) analysis because that is what we end up to at thebottom line. We end up with the evidence of Nolan, a 16 year old young man, and the accused, and I quite frankly looked at it, as I haveall day, that the case between the evidence of the accused and the victim, there is very little difference.

They both describe the chase ofNolan by the accused and with the evidence which is consistent with substantial provocation, I believe there to have been an intentionalapplication of force without Nolan’s consent. We know the accused was very angry after the first egging to the point he attempted to break a mirror off a truck while the truck wasleaving the scene. With regard to the second egging incident on top of the first, the accused further displayed his anger.

He was yellingand swearing and was very determined to apprehend Nolan who the accused believes is the person responsible for the second egging,and I make no finding whatsoever as to who threw the eggs. This brings us to the moment when Nolan was getting out from underneath the Jeep. I am asked to accept that the accused was actingreasonably as Nolan came out from under the Jeep on his back. If Nolan hit the legs of the accused, which I don’t believe reallyhappened, one cannot conclude that the accused was reasonably acting in a self-defence mode.

There is no evidence to suggest that theaccused was apprehensive as to death or bodily harm. In punching the victim with two or three punches to the victim’s face, the accusedresponded to the entire situation with excessive force. He was angry, he was looking for someone to extract vigilante justice from, and hedid so. Stand up, Mr. Hamilton. I find as a matter of law that

section 35 is not applicable to the case at bar. I cannot apply the generous clause within

section 35(

d) I thinkwhich says

an act that is reasonable in the circumstances. I don’t believe his actions were reasonable; therefore, I refuse to apply section35. The accused is found guilty of intentionally applying force without the consent of Nolan Eybergen,

section 266 of the CriminalCode. ... [16] The trial judge imposed a sentence of a $750 fine plus the victim fine surcharge, rejecting the Crown’s submission of 90 daysin gaol and the defence submission of a fine plus probation. III. Issues [17] The issues raised by the Crown in this appeal are: A. whether the learned trial judge erred in concluding the injuries inflicted by Mr. Hamilton did not constitute “bodily harm”. B. whether the learned trial judge erred in determining that a fine was an appropriate sentence. IV.

Standard of Review [18] The standard of review to be applied where the question of law is whether injuries constitute bodily harm is one ofcorrectness: R v Bulldog, 2015 ABCA 251 at para 18: Whether accepted facts permit a legal conclusion, such as whether certain injuries constitute bodily harm, is reviewable for correctness:R v Morin, (SCC), [1992] 3 SCR 286 at 294, 66 CCC (3d) 193. [19] The standard of review for sentence appeals is reasonableness, and affords deference to the sentencing judge.

Although anappellate court may disagree with the sentence imposed by the sentencing judge, if the outcome is within the appropriate range ofsentence, that decision is entitled to deference, as stated by Iacobucci J in R v Shropshire, (SCC), [1995] 4 SCR 227 atpp 249 - 250: ... An appellate court should not be given free reign to modify a sentencing order simply because it feels that a different order ought tohave been made.

The formulation of a sentencing order is a profoundly subjective process; the trial judge has the advantage of havingseen and heard all of the witnesses whereas the appellate court can only base itself upon a written record. A variation in the sentenceshould only be made if the court of appeal is convinced it is not fit. That is to say, that it has found the sentence to be clearlyunreasonable. V. Legislation [20] Sections 2 and 267 (

b) of the Criminal Code provide as follows: 2 ... 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 merelytransient or trifling in nature;

267 Every one who, in committing an assault, ... (

b) causes bodily harm to the complainant, is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or an offence punishable on

summaryconviction and liable to imprisonment for a term not exceeding eighteen months. VI. Analysis A. Whether the learned trial judge erred in concluding the injuries inflicted byMr. Hamilton did not constitute “bodily harm”. [21] The Crown argues that the Trial Judge erred in finding that medical evidence would be necessary to conclude that Mr.Eybergen had a concussion. She relies on R v Giroux, 1995 ABCA 393 [1995] AJ No 900, per Fraser JA at paras 3 – 4: 3 It is also evident from reviewing the reasons from the trial judge that the trial judge erred in law on two points.

First, he indicatedthat there had to be a medical report which supported the aspects of bodily harm before he was in a position as a trial judge to convict ofassault causing bodily harm. In this, he is in error. Secondly, the trial judge also erred by suggesting that it was necessary in order toconvict for assault causing bodily harm, that there be medical evidence indicating a prescribed course of treatment or care in respect ofthe injuries falling within the parameters of the charge of assault causing bodily harm.

In that respect too, he also erred. 4 For these reasons, therefore, we would substitute a conviction for assault causing bodily harm based on the evidence of Mr. Isadoreto the effect that he had a sore neck for a period of one month. We note that at one stage, he was treated for possible spinal damage. Inour view that sore neck, according to his evidence, is neither trifling nor transitory and is sufficient to constitute bodily harm. We alsoagree that in these circumstances, it is appropriate to remit this matter back to the trial judge for re-sentencing of Mr. Giroux. Therefore,the Crown appeal is allowed.

The result of this decision renders the Crown sentence appeal, which would otherwise come before asentence panel of this court, redundant since the matter will now be dealt with by the trial court. [22] The Crown also relies on Bulldog where the Court of Appeal held that it is not necessary for the Crown to call physicians totestify as to the “less-than-fleeting effects” of an injury, at para 45: 45 These injuries are variously similar to those sustained by Keepness. The appellants, however, point out that the trial judge had noevidence before her regarding the duration of those injuries.

It is not necessary, however, for the Crown to call physicians to testify to aninjury's less-than-fleeting effects. In Dixon (at 332), Esson JA was content to observe that "[f]rom the time of the assault at least until themedical treatment was completed, it is clear that the victim must have been deprived of any sense of comfort which she might have hadbefore being assaulted." That observation is equally apposite here. Nor is it necessary for the Crown to have adduced direct evidence ofpain or discomfort from Keepness or from a treating practitioner.

It is hardly blazing new territory for a court to infer discomfort fromsuch obvious considerations as the victim's injuries. Again, in Dixon, Esson JA said (at 332, emphasis added) that "it is clear that thevictim must have been deprived of any sense of comfort which she might have had before being assaulted".

Similarly, this Court said inDorscheid (at para 11, emphasis added) that "[s]ignificant bruising will obviously cause discomfort ..." [23] The Crown also argues that the trial judge misstated the legal test for this offence in articulating it by stating that he had “…got the distinct impression …that the injuries weren’t particularly onerous or serious.” The Crown argues that, rather, the test forestablishing bodily harm is not an onerous one. [24] The Crown further relies on R v Moquin 2010 MBCA 22.

There, the Manitoba Court of Appeal catalogues the types ofinjuries that constitute “bodily harm” within s 2 of the Code, at para 25: 25 Examples of injuries that have been found by courts of appeal to constitute bodily harm within s. 2 of the Code are as follows: -- scrapes, lacerations and bruises, especially around the eye and a large amount of hair which had been pulled out by the roots -- thecourt observed that significant bruising will obviously cause discomfort and inconvenience for more than a brief and transitory period --R v Dorscheid, 1994 ABCA 18 [1994] AJ No 56 (CA) (QL); -- superficial injuries, consisting primarily of bruising and abrasions, were found at trial to have interfered with the complainant'shealth and comfort, which decision was upheld on appeal -- R v Rabieifar, [2003] OJ No 3833 (CA) (QL); -- a number of bruises to the neck and arms, a number of lacerations to the face, chest, shoulder and wrist which cleared up within aweek, difficulty speaking for three or four days as a result of choking and a scar on her forearm from a laceration -- the court noted (1)that it was incorrect to find that an injury that would heal within a week could not constitute bodily harm, as life-threatening injuries canbe of short duration, and, (2) one must look at the overall effect of a number of injuries, each of which may be trifling, but taken togethermay be more than trifling and transient -- Garrett; and -- a sore neck that lasted for approximately one month - the court also noted that medical evidence is not required before making afinding of bodily harm -- R. v.

Giroux, 1995 ABCA 393 [1995] AJ No 900 (CA) (QL). [25] Crown counsel also refers to Moquin at para 28: 28 It follows from the decision in McCraw that, to constitute bodily harm, an injury does not have to meet the standard that it "interferes

in a grave or substantial way with the physical integrity or well-being of the complainant," that being the standard for serious bodilyharm, which is a higher standard than bodily harm. It should be noted that, for the most part, the offences that incorporated seriousbodily harm have been amended to require only bodily harm. Within each offence there is a range of harm, and one of the issues onsentencing is the degree or seriousness of the harm within that range. [26] Counsel for Mr. Hamilton argues that there was no medical evidence before the trial judge that Mr.

Eybergen suffered aconcussion, and that it was reasonable for the trial judge to find he was unqualified to make such a diagnosis. I agree with counsel thatwithout medical evidence of a concussion, it was reasonable for the trial judge not to draw the conclusion that Mr. Eybergen suffered aconcussion. However, the matter does not end there. [27] Though medical evidence would be required for the Court to draw the conclusion that Mr.

Eybergen suffered a concussion,medical evidence is not necessary for the court to evaluate the effects of the assault upon the victim and the extent of the injuries in orderto decide whether those injuries meet the threshold of proof necessary to establish “bodily harm” beyond a reasonable doubt. [28] The evidence on the record and before the trial judge was that Mr.

Eybergen’s injuries included a bloody nose (it was“gushing blood”); a bump on the head that started to go down after about four days; a fat lip that lasted for approximately three days;recurring headaches for a week that interfered with his school work; and forgetfulness. Mr. Eybergen’s evidence also was that his short-term memory “…wasn’t fantastic”, in this context, meaning after the assault. [29] Counsel for Mr.

Hamilton argues that in cases of assault causing bodily harm, it is statutorily incumbent on the Crown, byvirtue of s 2 of the Criminal Code, to prove beyond a reasonable doubt that the injuries constitute “any hurt or injury to a person thatinterferes with the health or comfort of the person and that is more than transient and trifling in nature”. While the test is clear, I do notagree with counsel’s position that there was insufficient evidence before the trial judge for him to conclude that the standard of “bodilyharm” had been met. [30] In my view, these injuries as described by Mr.

Eybergen in his testimony cannot be said to be either transitory or trifling innature. The bump on his head lasted four days, the fat lip lasted three days, and the headaches – bad enough to interfere with school work– lasted for a week. Further, it is obvious that these injuries must have been deprived Mr. Eybergen of any sense of comfort which hemight have had before being assaulted, and were more than transient and trifling in nature.

Further, the degree of injury is consistent withthe facts described in evidence and accepted by the trial judge: an angry man attacked a defenceless 16 year old boy who was not yet onhis feet as he emerged from hiding under the Jeep, and struck the youth on the head two or three times. [31] I must conclude that the trial judge, though referring to the need for the injuries to be “…more than transient, more thantrifling in nature and affecting the victim’s quality of life…”, was in error in finding that the injuries “weren’t particularly onerous orserious”, and therefore “bodily harm” was not proved.

In using the latter language, the reasoning of the trial judge is revealed – heapplied a higher standard than that set out in the Code definition or the cases referred to above. [32] Since the question of whether the injuries amounted to “bodily harm” is a question of law, the decision of the trial judge onthat question is amenable to review on a standard of correctness. Given the facts as to the injuries that were not in dispute, and givenapplication of the proper test, I conclude that Mr. Hamilton is guilty of assault causing bodily harm. B.

Whether the learned trial judge erred in determining that a fine was anappropriate sentence. [33] As the Crown argues, the trial judge does appear to have been influenced in assessing penalty by his perception that the attackupon Mr. Eybergen was provoked. He states the following: THE COURT: ... Well, I am faced with fairly divergent submissions as to an effective sentence here. I cannot emphasize any moreclearly than the words I attempted to find in the judgment about the excessive and sudden provocation that Mr. Hamilton was subjectedto. Be it right or wrong about Mr.

Nolan Eybergen’s involvement in the egging of the residence, I have no opinion about that, but be thatas it may, the accused did go through a substantial period, for perhaps an hour or so, of a situation where he was -- believed that he had torespond. He was angered. Of course, I mentioned that in my judgment, but I do conclude on all of the evidence that is before me andhope I had said it right in the judgment that there was substantial provocation. Now, provocation doesn’t go in law in Canada to guilt or innocence.

All that provocation goes to is sentencing and I can reasonablyconclude that with the provocation before me today, that certainly I would be in error in law when applying sections 418, 418.1 and418.2 of the Criminal Code concerning principles of sentence, I would be wrong if I were to consider a gaol sentence for this man as aresult of this factual situation. I don’t know, Mr. Hamilton, how the matter is going to play out with your $5,000.00 worth of damageclaim.

I have no opinion about that matter either, but I can reasonably conclude that you suffered damage as a result of somebody’scriminal acts and that hopefully you will be compensated for that. [34] The sentencing judge declined to impose probation and concluded that he did not need a gaol sentence. He imposed a fine of$750 plus the victim fine surcharge. [35] I accept the Shropshire principle that great deference should be accorded to the decision of a sentencing judge.

However,where the court on review is convinced that the sentence is not fit, that is to say it has found the sentence to be clearly unreasonable, thesentence is then open to review. [36] In my view, the sentencing judge imposed a sentenced upon Mr. Hamilton on the basis that Mr. Hamilton was “provoked”,carrying with it the suggestion that the egging of his house mitigated the seriousness of the violent response. [37] It is true that whether or not the offence was provoked can operate as a consideration in sentencing. In R v Stone, 1999

688 (SCC) , [1999] 2 SCR 290, Bastarache J, writing for the majority, stated at para 234, that "...in reaching a sentence which accurately reflects a particular offender's moral culpability, the sentencing judge must consider all of the circumstances of the offence, including whether it involved provocation." Though that case involved the codified defence of provocation under current s 232 of the Code (which operates to reduce murder to manslaughter), the principle the majority of the Court advances is that provocation is not restricted only to an accused's defence strategy; it can also operate within the realm of sentencing.

This makes sense since the sentence must be meted out with regard to the offender’s culpability and blameworthiness. But surely provocation only operates as a consideration in assessing penalty, where it is the victim who provoked the attack. There is no evidence to support the conclusion that Mr. Eybergen provoked the attack by Mr. Hamilton. [ 38 ] Rather, Mr. Hamilton had no justification, in law or otherwise, for the attack upon Mr. Eybergen. Even if his house was egged on more than one occasion during the evening in question, and even if he had a rational basis to conclude that Mr.

Eybergen was the offender (though the judge made no such finding), Mr. Hamilton was not entitled to take the law into his own hands and assault the youth who he believed to be responsible for the mischief. This type of vigilante justice cannot be tolerated in a civilized society. [ 39 ] The trial judge mitigated penalty by reference to “provocation” when there was no provocation that could bear on the question of sentence. R v Jamieson , 2009 ABCA 208 is a case involving vigilante justice to protect property.

Similar to the present case, there was no evidence that the victim was involved in the crime that the accused attributed to him. In Jamieson , the accused thought the victim was stealing his father’s truck, when in fact the victim mistook the vehicle for his cousin’s truck. Rowbotham JA stated for the Court that this “... was a two-on-one vigilante attack on an innocent, unarmed victim.

The level of violence was gratuitous and went far beyond the stated aim of preventing a theft...” (at para 6). [ 40 ] As the Crown appealed, in part, on the basis that the trial judge erred in his decision as to sentence, I have addressed that question. However, since the sentence was imposed for simple assault and since that conviction was set aside, and a conviction of assault causing bodily harm substituted, I am obliged to return the matter to the trial judge for imposition of sentence. VI. Conclusion [ 41 ] The conclusion drawn by the trial judge that the injuries inflicted by Mr.

Hamilton and sustained by Mr. Eybergen do not constitute bodily harm is in error and must be set aside. Since the facts as found by the trial judge are not challenged on this appeal, and are not disturbed, it is unnecessary to direct a new trial. Instead, a conviction is entered for the offence of assault causing bodily harm, contrary to s 267(

b) of the Criminal Code . The appeal against conviction is granted. [ 42 ] The sentencing judge imposed a fine of $750 upon Mr. Hamilton on the basis of the conviction for simple assault. In my view, the fine of $750 in the particular circumstances of this case is inadequate to the gravity of the offence and the degree of responsibility of the offender. As suggested by defence counsel, the fine should have been coupled with a period of probation with counselling, suitable to the offender, but focused on Mr.

Hamilton’s conduct, including his wrongful use of force against a youthful and apparently innocent bystander. However, since I am obliged to refer the matter back to the trial judge for sentencing, the decision as to a fit and proper sentence will be his. Heard on the 2 nd day of February, 2016. Dated at the City of Edmonton, Alberta this 15 th day of June, 2016. S.J. Greckol J.C.Q.B.A. Appearances: Tara Hayes

Edmonton Rural and Reginal Response Office for the Crown Kathryn Quinlan Royal & Company for the Accused