R. v. Girard, 2015 ONCJ 179

COURT FILE No.: 13-001351 Citation: R. v. Girard , 2015 ONCJ 179 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — JESSE GIRARD Before Justice Robert S. Gee Trial heard March 4, 2015 Reasons for Judgment released on March 6, 2015 C . Good ........................................................................................ for the Crown D .

Henderson ............................................................................ for the Accused INTRODUCTION [ 1 ] In the early morning hours of June 23, 2013, David Laskey was assaulted by Kyle Whiting on the porch to his residence in downtown Brantford. The accused, Jesse Girard also joined the altercation and by his own admission, struck Mr. Laskey with at least two blows. Tragically as a result of the beating endured, Mr. Laskey’s left eye was ruptured and notwithstanding subsequent surgery to repair the damage, he is now blind in that eye.

What makes this even more tragic is that due to a pre-existing condition, Mr. Laskey was already blind in his right eye. [ 2 ] The fight commenced, as they too often do, with words exchanged between persons who have had too much to drink for their own good. Mr. Laskey’s residence is in downtown Brantford in the vicinity of several bars. As is wont to happen, an altercation unrelated to the fight that brings us here, occurred at one of the bars at closing time.

This resulted in the attendance of the police to the area and a large crowd, estimated at trial to be upwards of 100 persons, gathering in the street in front of Mr. Laskey’s house. [ 3 ] Mr. Whiting happened to be in front of Mr. Laskey’s house when Mr. Laskey came out and began yelling at Mr. Whiting in particular, and the crowd in general, to move along and keep quiet. Mr. Whiting took exception to being singled out by Mr. Laskey and they exchanged words. [ 4 ] At some point Mr. Laskey retreated into his house and closed the door. Mr. Whiting was apparently not content letting Mr.

Laskey have the last word so he proceeded to run from the street onto Mr. Laskey’s porch and deliver a flying kick to Mr. Laskey’s front door breaking it open. Upon doing so he immediately grabbed Mr. Laskey and began beating him. Very shortly thereafter, Mr. Girard joined the fray. [ 5 ] As a result of this, both Mr. Whiting and Mr. Girard were charged with the aggravated assault of Mr. Laskey, and for breaking and entering into his home. Mr. Whiting has already been found guilty and is currently serving a sentence for the aggravated assault of Mr.

Laskey. [ 6 ] Several issues were either admitted before trial commenced or were agreed to after the conclusion of the evidence. First, it was admitted that the injury to Mr. Laskey’s eye meets the threshold for aggravated assault. Second it was admitted that Mr. Whiting struck the initial blows that started the altercation. Finally, it was conceded by the Crown that it was Mr. Whiting alone who kicked in the door to Mr. Laskey’s residence, and Mr. Girard was not involved in this aspect of the encounter. As a result of this concession the Crown has invited me to dismiss the break and enter charge against Mr.

Girard and it will be so dismissed. [ 7 ] That leaves Mr. Girard facing the aggravated assault charge. He has advanced a defence grounded in s. 34 of the Criminal Code in that his actions were in the defence of Mr. Whiting. In order to determine the applicability of this defence I must make factual findings of what took place that night. To do so I must assess the credibility of the witnesses who testified. [ 8 ] Although Mr. Girard admits to a limited involvement in the altercation, his version of what happened that night and his role in it differs significantly from that of other witnesses.

This case differs somewhat from other cases where an accused gives a different version of events from other witnesses. In most cases, a judge will instruct him or herself that if they believe the accused’s version they must acquit. However in the context of a claim under s. 34 it is not so clear cut. For instance, even if I believe Mr. Girard did what he

said and did it for the purpose for which he said, I could still find his acts were not reasonable in the circumstances which could result in a conviction. THE EVIDENCE [ 9 ] At trial, four witnesses testified who were either involved in the altercation or witnessed it. [ 10 ] The first to testify was Mr. Laskey. At the time of the altercation he was 49 years old, 5’9” tall, weighed 145 lbs. and as noted, was blind in his right eye. He stated that he became aware of a large crowd that had gathered in front of his house at about 2:30 a.m.

He went out his front door and yelled for them to move from the front of his house. He stated he heard a voice from the crowd as he went back in his house and shut the door. The next thing he knew, his door was kicked open. The force of the kick resulted in the door striking him and him to falling to the floor. He was then kicked repeatedly by two persons in the head and body. [ 11 ] He indicated he did not fight back and only tried to protect himself. As a result he was not able to identify either of his assailants. [ 12 ] The next witness called by the Crown was Josh Stickle. Mr.

Stickle is a 26 year old student who, on the night in question, was out with a couple of friends. Mr. Stickle did not know any of the parties involved in the fight and in that sense can be described as an independent witness to the events. He described one of the males, which would be Mr. Girard, as being taller than the other two, who he stated were about the same height. To distinguish between them, he described Mr. Laskey as being the older one. [ 13 ] He testified he observed what would be Mr. Whiting and Mr. Girard both assaulting Mr. Laskey.

He stated one of the two males at one point kicked in the door to Mr. Laskey’s residence and they proceeded to beat him on the porch. At first Mr. Laskey was standing and was being punched numerous times by both Mr. Whiting and Mr. Girard. One of them kneed Mr. Laskey and he fell to the ground at which time he was kicked, although Mr. Stickle was not sure if one or both Mr. Whiting and Mr. Girard were doing the kicking. Throughout the encounter, he stated Mr. Laskey was putting up little resistance and described his actions as “turtling” in order to protect himself from what Mr.

Stickle stated was an excessive number of blows. [ 14 ] Mr. Stickle then sought out a police officer in the area. He advised the officer what was happening and pointed out Mr. Whiting and Mr. Girard as the assailants. [ 15 ] Mr. Girard was the first witness to testify for the defence. At the time of trial he was 21 years old, 6’2” tall and weighed 210 lbs. At time of the altercation he was the same height but weighed 180 lbs. He advised that Mr. Whiting was his uncle and had been over at his house that day helping his family move. In the evening when the moving was finished, he and Mr.

Whiting decided to go out for the night. [ 16 ] They went downtown and visited a number of bars. They decided to head to one more bar, namely “The Gentlemen’s Club” and were walking to it when, according to Mr. Girard, he changed his mind and decided to go home. Mr. Whiting had been upset and arguing via text message throughout the night with his then spouse, Mr. Girard’s aunt, and it was not abating, so Mr. Girard decided to call it a night. [ 17 ] He stated he started walking ahead of Mr. Whiting and by the time they were in the area of Mr. Laskey’s house he was a house or two up the street from Mr. Whiting.

He stated he heard a loud bang behind him and when he turned to look he noticed Mr. Whiting and Mr. Laskey in an altercation on the porch. [ 18 ] He stated he ran back and when he arrived on the scene Mr. Laskey had his arm around Mr. Whiting’s neck and they were exchanging blows. According to him it appeared Mr. Laskey had the upper hand in the fight so he decided to intervene to defend his uncle. He did so by punching Mr. Laskey in the left side of the face which staggered him and he then delivered another punch to Mr. Laskey’s nose which caused him to fall to the ground. [ 19 ] Mr.

Girard stated before he fell both he and Mr. Whiting were punching Mr. Laskey. According to Mr. Girard, after Mr. Laskey fell, only Mr. Whiting continued to strike him. He did so by kicking him until Mr. Girard told him to stop. Once the fight ended, he and Mr. Whiting continued on their way down the street until the police stopped them less than a minute later. [ 20 ] Mr. Whiting was also called by the defence. He is 5’8”, weighed 130 lbs. at the time of the incident and described himself as physically fit. [ 21 ] He testified that he and Mr.

Girard visited several bars that night and were heading downtown to get something to eat after closing the final bar. In doing so they passed Mr. Laskey’s place and according to Mr. Whiting, Mr. Laskey began to berate him for no apparent reason. Being singled out, from such a large crowd as the object of Mr. Laskey’s derision seemed unfair to Mr. Whiting and upset him greatly. [ 22 ] Mr. Laskey then said something further to Mr. Whiting and retreated into his house. This final act seemed to be the spark that lit the very short fuse on the powder keg that was Mr. Whiting that night. [ 23 ] According to Mr.

Whiting, he ran from the street, onto Mr. Laskey’s porch and delivered a running kick to the front door which broke it open. He then grabbed Mr. Laskey and started hitting him numerous times. He was unable to say or estimate how many times he hit him other than it was a lot. He stated during this that Mr. Laskey may have been trying to grab his arms to protect himself. [ 24 ] He stated he does not recall Mr. Laskey going to the ground nor does he remember hitting or kicking him while he was down. He stated at the end Mr. Girard was right beside him.

He did not notice him before nor did he notice him doing anything. [ 25 ] He agreed it appeared he had the upper hand in the fight and that other than a small scratch to his face he was uninjured. After the fight ended, Mr. Laskey’s blood was on his hands and his pants. When they left he and Mr. Girard continued on their intended direction until stopped by the police.

ASSESSMENT OF THE EVIDENCE [ 26 ] In turning to the assessment of the credibility of these witnesses, first dealing with Mr. Laskey, I find he testified to the best of his abilities in the circumstances. There is no doubt he is angered by what happened to him and rightfully so. There is also no doubt he is convinced Mr. Girard is as culpable as Mr. Whiting. He told of an encounter in a bar last July in which he is convinced Mr. Girard sat next to him and told him he was the one who took

part in his beating and that his uncle took the fall for it. He was challenged about this incident and I am not convinced it happened, or, if he did speak to someone that it was in fact Mr. Girard. As will be recalled, even by trial Mr. Laskey was unable to identify either of his assailants. [ 27 ] Moreover, by last July Mr. Laskey knew two people had been arrested and one of the accused was the uncle of the other. Although I do not know when Mr. Whiting’s charges were resolved and whether he pled guilty or was found guilty, it can be presumed that Mr. Laskey would have been made aware of the outcome.

In any event, given Mr. Girard does not deny being involved in the altercation, even if such a conversation took place it would be of little consequence. As such, I place no weight on this aspect of Mr. Laskey’s testimony. [ 28 ] There were other aspects of Mr. Laskey’s testimony that were not perfect, but in the end these areas I find are of little consequence.

For instance at one point he said he was asleep when awoken by the noise of the crowd and at another point he said he was on his computer when he noticed the crowd. [ 29 ] Also differences with other witnesses such as where he was when he received the blows; inside his door, on the threshold or just outside on the porch; or if he was standing or on the ground when the blows were striking him also are of little consequence. This was an assault that was particularly violent, was unprovoked, occurred without warning and happened quickly.

Differences between witnesses on details such as these in circumstances such as this are not uncommon and to be expected. This is not exclusive to the assessment of Mr. Laskey but applies to the assessment of the evidence of all witnesses. [ 30 ] The gist of Mr. Laskey’s evidence was that, like stated he was attacked, unprovoked and without warning in his home. The attack was violent, frightening and quick. He was the weakest and most vulnerable of the persons involved and he had little time to react.

Once the attack began his only response was to try to cover up and protect himself. [ 31 ] This is what he testified to and I accept it. I accept it because I believe he was telling the truth as best he could as to what happened and because it is consistent with testimony of other witnesses that I accept and other evidence I also accept. [ 32 ] In turning to the evidence of other witnesses, I also accept the evidence of Mr. Stickle. As noted, he was an independent witness unknown to any of the persons involved.

Although he had been drinking there is nothing in his evidence to make me believe his perception or recollection is suspect because of it. He was within 20 feet of the fight, was able to observe the events as they unfolded and advised the officers immediately what he saw and who was involved. He too described the fight as violent with an excessive number of blows being delivered to Mr. Laskey by both of his attackers. He also observed Mr. Laskey not fighting back but simply trying to protect himself as best he could by turtling. [ 33 ] Even Mr.

Whiting I found to be a candid witness who testified about the fight being similar in nature as described by Mr. Laskey and Mr. Stickle. [ 34 ] He admitted he was angry and felt slighted by Mr. Laskey to the point he kicked in his door and attacked him. He described a fight in which he clearly attacked without warning, displayed an extreme level of violence from the moment he kicked open the door, gave his victim no opportunity to prepare, retreat or respond to his attack, and was clearly destined to be the victor in the fight from the moment it commenced. Not even he could say that Mr.

Laskey was able to punch back; all he could say was he tried to grab his arms to protect himself. [ 35 ] That Mr. Whiting was not aware of Mr. Girard’s presence until the end or what his exact level of participation was is not unexpected given his level of rage and focus on his own actions directed toward Mr. Laskey. [ 36 ] The attack taking place in this manner is also consistent with common sense and the physical evidence. Mr. Laskey was significantly older, of slight build and vulnerable in that he was before the fight, already blind in his right eye. As well Mr. Girard suffered no injuries and Mr.

Whiting stated he may have suffered a small scratch. Contrast this with Mr. Laskey whose injuries were catastrophic. In addition to his blood being on Mr. Whiting and the pain to his body from the multitude of blows, his left eye was ruptured and notwithstanding surgery to repair the damage, he has been left blind in it. [ 37 ] In turning to Mr. Girard’s evidence, it was contradicted in a number of respects by Mr. Whiting. For instance, Mr. Whiting testified they attended more bars that night than Mr. Girard said they did. Also Mr. Whiting testified to the consumption of more alcohol that night by both he and Mr.

Girard than Mr. Girard testified to. Also Mr. Girard said they only spoke about going to the Gentlemen’s Club at the end of the night but never made it, whereas Mr. Whiting testified they were there for an hour or more and closed it down that night. It is clear the fight took place about 2:30 a.m. so it seems that Mr. Whiting is accurate in his testimony that they were out until the bars closed. I am left with the impression from this that Mr. Girard was trying to downplay his activities and alcohol consumption that night leading up to the fight. [ 38 ] I accept that Mr. Girard was not right next to Mr.

Whiting when Mr. Whiting kicked in the door. This is confirmed by not just Mr. Whiting but also by Officer Holt, who said when he heard the bang made by Mr. Whiting kicking the door, Mr. Girard was in front of the house next door. [ 39 ] However I do not believe Mr. Girard about what he says he saw when he got to Mr. Laskey’s porch. He says he saw Mr. Laskey with his arm around Mr. Whiting’s neck and the two of them punching each other with Mr. Laskey enjoying the advantage in the fight. I do not believe Mr.

Girard when he says he saw this. [ 40 ] I do not believe it as it is inconsistent with every other witness who was involved in or observed the fight. As noted earlier, right

from the start, Mr. Whiting was laying a proverbial beating on Mr. Laskey. There was no point when Mr. Whiting was in danger or when Mr. Laskey ever enjoyed any advantage. This assertion by Mr. Girard is simply not worthy of belief. [ 41 ] Mr. Girard testified he became involved and threw two punches. I believe him when he says he became involved. I do not believe him when he says he only threw two punches. I believe the observations of Mr. Stickle are accurate; that both Mr. Whiting and Mr. Girard were delivering numerous blows to Mr. Laskey. Mr. Girard may have stopped sooner than Mr.

Whiting, but his involvement was more than he testified to. THE S. 34 DEFENCE [ 42 ] Turning to Mr. Girard’s assertion he was defending Mr. Whiting, the elements of s. 34 of the Code can be broken down into three factual preconditions and one evaluative component. The three factual preconditions require me to find that or be left in a doubt about whether; first, the accused believed on reasonable grounds that a threat of force was being made against them or another.

Second, that threat of force was unlawful, or the accused reasonably believed it to be unlawful; and third, the accused acted for the purpose of defending or protecting themselves or others from that threat of force. The evaluative component is that the act committed by the accused is reasonable in the circumstances. [ 43 ] In the circumstances of this case, I find that Mr. Girard’s claim to be defending his uncle, fails on all three of the factual preconditions just mentioned. [ 44 ] In relation to the first precondition, I must be satisfied Mr. Girard reasonably believed force was being used against Mr.

Whiting. This has both a subjective and objective component. Mr. Girard must personally believe force is being used against Mr. Whiting and that belief must be objectively reasonable. [ 45 ] In the circumstances of this case, based on the factual findings I made about the nature of the fight, simply because there was a violent encounter taking place, does not necessarily lead to a finding that Mr. Whiting was having force used against him. [ 46 ] I found this was a one-sided beating from the start and that Mr. Laskey did nothing more than attempt to protect himself. Given that finding, I do not believe Mr.

Girard’s assertion that he thought Mr. Whiting was losing or that he was in any danger. In any event, even if he did hold such a belief, that belief would not be objectively reasonable in the circumstances. As noted, given the way this attack unfolded, it would have been obvious to any observer that there was no threat of force against Mr. Whiting. [ 47 ] Turning to the second precondition, the force being used against Mr. Whiting must have been unlawful, or Mr. Girard must have reasonably thought it to be unlawful. Even though I found no force was being used against Mr. Whiting by Mr.

Laskey, if there was, in the circumstances here, it was not unlawful; on the contrary, it was completely justifiable. It was justifiable for at least three reasons; first Mr. Whiting trespassed onto Mr. Laskey’s property and forcibly broke and entered his home. In these circumstances Mr. Laskey would be justified using whatever force was reasonably necessary in the circumstances to protect his property and remove the trespasser. Second, he was attacked, unprovoked and without warning by Mr.

Whiting, in these circumstances he would have been justified in defending himself; and third, the best case scenario was that Mr. Whiting and Mr. Laskey engaged in a consensual fight that had not exceeded the bounds of that consent by the time Mr. Girard intervened. [ 48 ] In relation to Mr. Girard’s belief, he heard the bang as his uncle kicked in Mr. Laskey’s door. When he returned he knew Mr. Whiting was engaging Mr. Laskey, at best, on the porch to his residence after his door had been kicked in. In these circumstances he would have been aware that Mr.

Laskey was defending his property and that any force being used against Mr. Whiting was not unlawful. If he did not realize that, on an objective basis that belief of his would not have been reasonable. [ 49 ] As well, given the nature of the attack as I have already described, it would have been obvious to Mr. Girard that Mr. Laskey was entitled to defend himself from Mr. Whiting’s assault. In fact the person who needed someone to defend them that night was Mr. Laskey, not Mr. Whiting. [ 50 ] Last, even if what Mr. Girard said was true, that Mr. Laskey had his arm around Mr.

Whiting’s neck and they were exchanging punches, at most this was a consensual fight that had nowhere near exceeded the bounds of the consent at that point. [ 51 ] The third precondition is that the person acted for the purpose of defending or protecting themselves or others. Mr. Girard’s actions that night do not come close to meeting this condition. I find his actions that night were not in any way for the defence of Mr. Whiting or protecting him. As noted, Mr. Whiting did not need defending or protecting, and Mr. Girard knew this. [ 52 ] Pure and simple, I find Mr. Girard decided to join in the fight.

He decided to be the second man in on a much smaller, vulnerable victim. There was nothing defensive or protective to Mr. Girard’s actions. [ 53 ] For these reasons I find that Mr. Girard’s claim to be defending Mr. Whiting is without merit and fails. Having made this finding it is unnecessary to address the evaluative component and assess whether his acts were reasonable in the circumstances. CAUSATION OF THE INJURY [ 54 ] There was some argument at trial as to under what circumstances it may be necessary for the Crown to prove Mr. Girard delivered the blow that caused the injury to Mr. Laskey’s eye.

The defence argued that if I found Mr. Girard was justified in coming to the defence of Mr. Whiting but his acts exceeded what was reasonable in the circumstances, in order to convict Mr. Girard of aggravated assault I would have to be able to determine he delivered the decisive blow. If I could not then he would only be liable to a finding of guilt to an assault simpliciter. [ 55 ] I am not convinced there is any merit to this argument but given my findings in relation to his claim to have been defending Mr. Whiting it is unnecessary to address the argument.

[56] Also in relation to this issue, the defence provided me with the case of R. v. Briscoe 2010 SCC 13 , [2010] S.C.J. No.13. This discussed party liability under s. 21(1) (

b) and (

c) of the Code. The Crown provided the case of R. v. Maybin 2012 SCC 24, [2012] 2 S.C.R. 30 which reviewed causation and intervening act issues. [57] In my opinion it is not necessary to delve into any of the issues discussed in these cases. Based on my findings Mr. Girard’s actsmake him a principal to the offence and ground his liability under s. 21(1)(

a) of the Code. Given this, it is unnecessary for the Crown toprove which of the many blows delivered to Mr. Laskey caused the injury, or by whom it was delivered. In these circumstances they areequally as liable for the blows delivered by the other. See R. v. Ball [2011] BCCA 11 at paragraphs 21 to 31, leave to the SupremeCourt refused [2011] S.C.C.A. No. 320. CONCLUSION [58] To conclude, as conceded by the Crown and as mentioned at the start of these reasons, the charge of break and enter will bedismissed. However, based on these reasons, I find that Mr. Girard’s claim to have been defending Mr.

Whiting has failed and that theCrown has proven beyond a reasonable doubt that he was a principal to the assault that caused the injury to Mr. Laskey’s eye and as sucha finding of guilt will be made on the aggravated assault charge. Dated at Brantford, Ontario This 6th day of March 2015. The Honourable Mr. Justice R.S. Gee