R. v. Burns, 2011 ONCJ 829

COURT FILE No.: 1110825 Citation: R. v. Burns , 2011 ONCJ 829 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — CHRISTOPHER MARC BURNS Before Justice P.T. Bishop Heard on 19 September 2011 Reasons for Judgment released on 31 October 2011 Peter Keen ................................................................................................................ for the Crown Karen Seeley ..................................................................... for the accused Christopher Marc Burns BISHOP J.: [ 1 ] Christopher Marc Burns stands charged that on or about the 7 th day of May, 2011 at the City of Dryden did commit an assault on ALLIN MARCE MARCINO contrary to

Section 266 of the Criminal Code . And further that on or about the 7 th day of May, 2011 at the City of Dryden did commit an assault on JEREMY MEEKS contrary to

Section 266 of the Criminal Code. EVIDENCE OF JARED OLSEN : [ 2 ] Mr. Olsen is a Constable with the Dryden Police Service. He received a call about a local bar fight at approximately 12:44 a.m. When he and his partner arrived the fight was over and they were directed to two individuals by the overpass, Travis Herbert and Chris Burns. [ 3 ] Jared Olsen spoke to Burns and Hebert from a distance. Herbert had been drinking. He appeared impaired with glassy eyes and was placed in the police vehicle.

There appeared to be no injuries to the accused and his partner dealt with him. [ 4 ] Jared Olsen spoke to the complainant, Allin Marcino, who was an off-duty Dryden Police Service Constable. Mr. Marcino had red, glassy eyes and had an odour of alcohol on his breath but carried himself normally. He did not see any injuries but when Marcino ran his hand through his hair he had blood on it and was directed that he should go to the hospital. EVIDENCE OF ALLIN MARCINO : [ 5 ] Mr. Marcino has been a police officer for the past twelve years with the Dryden Police Service.

He had been playing golf and went to the Queen Street Station bar and arrived about 10:30 p.m. Travis Herbet and Chris Burns arrived at approximately thirty minutes to one hour later and sat apart from him. [ 6 ] Lisa Pizzi was at the bar and he spoke to her and Jeremy Meeks. About one-half hour to an hour later Travis Herbert and Chris Burns came in and went to the bar. They sat behind him about five feet away. [ 7 ] Mr. Marcino is dating Travis Herbert’s ex-wife.

He consumed four beer at the B & B and then three and one-half bottles and then at the Queen Street Station he had two drinks, vodka and water with cranberry. He believed that he was still sober. [ 8 ] As he was proceeding to the patio to leave, Travis Herbert accused him of “ruining his life, therefore I am going to ruin yours” and then threw a drink in his face. [ 9 ] The bartender told Mr. Herbert to leave and was being escorted from the bar. The bartender asked Chris Burns to help who exited the washroom and began swinging punches and connected with Jeremy Meeks. Mr.

Marcino felt he had to intervene. [ 10 ] He grabbed Mr. Burns’s arm and yelled at him to “stop”, at which time Mr. Burns threw several punches at him. The bouncer then grabbed Mr. Burns from behind and dragged him out of the bar as Burns continued to throw punches.

[ 11 ] Mr. Marcino stated that he was in a state of shock. He went to the hospital a few days later and didn’t need any stitches but now has a one-half inch scar on the top of his head. EVIDENCE OF JEREMY MEEKS : [ 12 ] Jeremy Meeks is twenty-six years old. He is the manager of Enterprise Car Rental. There was a fracas with Travis Herbert. Marcino intervened and he (Meeks) got in between Travis Herbert and Allin Marcino. [ 13 ] The bouncer pulled Travis Herbert off of him and he was assaulted on the back of the head. He fell down and he did not see who hit him.

EVIDENCE OF NICOLE ERNEWEIN : [ 14 ] She was the bartender at the Queen Street Station. [ 15 ] She saw Travis Herbert throw a drink in Mr. Marcino’s face. Travis Herbert shoved her up against a wall and she observed Chris Burns punch Marcino. [ 16 ] She asked Chris Burns to come and help as the bouncer was neutralizing Travis Herbert and Mr. Meeks. She observed Chris Burns throw punches towards Marcino’s face. Travis Herbert continued to yell and swear and she tried to assuage his concern by telling him that “I would be happy to be rid of the cheating bitch”.

EVIDENCE OF LISA PIZZI : [ 17 ] She is the daughter of the bartender. She got in between Travis Herbert and Allin Marcino and saw Travis Herbert throw a drink in Marcino’s face. [ 18 ] She saw Marcino fall to the ground and Mr. Burns hit him three times in the back of the head. EVIDENCE OF CHRISTOPHER DAVIS : [ 19 ] Mr. Davis was the bouncer at the Queen Street Station. He saw Travis Herbert throw a drink at Marcino. Mr. Herbert started to yell at Marcino. There were five to seven people close by. He saw Chris Burns hit Jeremy Meeks in the back of the head and then Mr. Burns threw some punches at Mr. Marcino. Mr.

Marcino tried to protect himself. The blows were closed-fist on the top of the head. He grabbed Travis Herbert around the shoulders. He had him in a head-lock as he escorted him out the door at which time Mr. Burns became involved in the altercation. EVIDENCE OF CHRIS BURNS : [ 20 ] Mr. Burns is employed in the construction industry and he came to the Queen Street Station with Travis Herbert after attending the Riverview Lodge. Mr. Hebert was complaining about Mr. Marcino having a history with his wife and he tried to talk Mr. Herbert down.

He then went to the washroom and the bartender asked him to come out and help. He observed Travis in a head-lock by the bouncer and he went to assist as Jeremy Meeks was also going at Travis Herbert. He grabbed Meeks by the shirt and kept coming at him. He then pushed him down and fell on top of Mr. Meeks. [ 21 ] At that point an individual grabbed him from behind. He was afraid for his own safety as he had surgery on his neck. He started throwing punches as he was protecting himself. He walked over to the door and he offered to pay money to the bartender which was rejected. He and Mr.

Herbert went to the overpass to wait for the police to come. [ 22 ] He denies throwing any punches at Meeks. They both went back and he tripped and he tried to control Mr. Meeks. He admits to throwing three or four punches at Marcino and after the second punch Mr. Marcino had his hands up in the “surrender” position. DECISION : [ 23 ] Having heard all of the evidence I am finding that the Crown has not proven the case of assault against Jeremy Meeks as there was conflicting evidence and a high degree of alcohol involved with all the participants. Mr. Burns’s version could equally be true about grabbing Mr.

Meeks by the shirt, falling down and the table falling on top of him. [ 24 ] With respect to Mr. Marcino, I am finding that the Crown has proven the case beyond a reasonable doubt as several Crown witnesses as well as the accused himself stated that he continued punching Mr. Marcino even after Mr. Marcino gave up and put his hands in front of his face in a defensive position. The force used by Mr. Burns was more than necessary and in the circumstances and constitutes an assault. [ 25 ] A conviction will therefore enter on one count of assault concerning Mr. Allin Marcino. [ 26 ] Mr.

Marcino should have had the common sense to not go to a public bar and become engaged in fist-to-cuffs. As a police officer, he is leaving himself exposed to criticism and should know better as an office holder to put himself in that position.

Released: 31 October 2011 Signed: “Justice P.T, Bishop”