Her Majesty the Queen - v. -, 2014 SKPC 113

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 113 Date: May 14, 2014 Information: 43173227 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Jon Paul Reaume Appearing: Lana Morelli For the Crown Jay Watson For the Accused JUDGMENT M.L. GRAY , J BACKGROUND [ 1 ] On February 3, 2013, Jon Reaume and Mitchell Kurylyk were charged jointly with assault causing bodily harm. At the commencement of the trial, Mr. Kurylyk entered a guilty plea to the lesser included offence of common assault with the consent of the Crown. The trial of the matter then proceeded in relation to Mr. Reaume alone. EVIDENCE

[ 2 ] Counsel for the accused admitted the date, jurisdiction and identity of the accused. Further, continuity was admitted of a disc of two 9-1-1 calls and a disc of a video from Mac’s Confectionery. In addition, counsel for the accused admitted the voluntariness of a statement made by the accused to police. This statement was not tendered by the Crown who only wanted to preserve the right to cross-examine on it. Rodney Simpso [ 3 ] Rodney Simpso, the complainant, testified that he is currently on disability but had been a paramedic for ten years.

On February 13, 2013, at about 10:00 p.m., he went to a Mac’s Confectionery and, when he came out, a large truck was parked very close behind his own vehicle. The driver was in the truck. He thought his car had been hit and took a flashlight from his vehicle to check his rear bumper. At the same time, he saw an individual getting out of another vehicle that was parked next to him. That individual and the person in the first truck spoke to each other. The complainant asked the driver of the large truck to move his vehicle so that he could leave.

The driver refused and continued his conversation with the other male. The complainant repeated his request and the second male said “don’t move your truck” to which the complainant responded that he would call the police. He believed that both men were under the influence of alcohol based on his experience as a paramedic. Mr. Simpso had not consumed any alcohol that day. [ 4 ] The first individual, identified as the accused, got out of his truck and put up his fists. Mr. Simpso went to the pay phone to call the police, at which point both males approached him from behind. The accused then struck him with a fist.

In response, the complainant struck him in the neck with the flashlight that he was holding. The second individual (Mitchell Kurylyk) then began punching him in the face. The complainant felt trapped and tried to run but both men kept striking him. He was knocked to the ground and the second male said to the accused “let’s go”. The accused kept punching and kicking while the complainant was on the ground. He repeatedly asked him to stop and tried to get up but the accused kept coming at him. The complainant tripped on a curb and was punched again. Mr.

Kurylyk pulled the accused off and the complainant ran into the store. The two men followed, calling him various derogatory names. The complainant went behind the counter and asked the clerk to call 9-1-1. [ 5 ] The two men left the store, and got into their respective vehicles. As the complainant wanted to get a licence plate number, he followed them to the parking lot. When Mr. Kurylyk saw him, he again ran after the complainant who turned and ran into the store. Both males then left. The complainant got into his vehicle and followed Mr. Kurylyk to get a licence plate number.

He flagged down a police officer in an unmarked car to report that he had been assaulted. [ 6 ] As a result of the assault, he had bruises to his eye and left side of his lip and his face, from the temple to neck became quite swollen. His eye was swollen shut and there was blood within the eye. He also had bruises on his shoulder and his elbow. It took approximately one month for all of the swelling to subside and two to three weeks for the bruising to disappear. In addition, his vision was compromised for approximately two weeks as he could not properly open his eye. There was no permanent damage.

In addition, his jacket was irreparably torn and his watch was lost. [ 7 ] In cross-examination, the complainant agreed that he was in the store before the accused parked his truck and that he came out to see the truck close to his vehicle. He agreed that the flashlight which he used was quite heavy and very similar to the type of flashlight used by the police. He saw no marks on the rear bumper, then asked the accused to move his truck. The accused responded with an obscenity and got out of his vehicle. The complainant again asked him to move his truck.

At that point, the second male approached and “egged” on the accused. He agreed both men were obnoxious and that he could well have simply waited until they made their purchases and left. He denied that he struck the accused on the head with his flashlight before running to the phone booth. He said that he went to the phone because he knew that he was in trouble and the call to 9-1-1 was placed before any blows were struck. [ 8 ] When he was on all fours and several feet from the telephone, he told the accused to stop the assault.

He believed that the accused demanded an apology because he had been struck with the flashlight and because the police had been called. He denied that he started the altercation or struck the first blow but admitted that he struck the accused in the legs when the accused was on top of him. Constable Richard Tataryn

[ 9 ] Constable Richard Tataryn has been a police officer for over fifteen years. On February 3, 2013, he was on duty, in uniform, and driving an unmarked police vehicle. He was flagged down by and spoke to the complainant from whom he received a licence plate number. He learned that the vehicle in question was registered to the accused who had two outstanding Traffic Safety Act warrants. That information was distributed to other officers and he later learned that the accused had been arrested. [ 10 ] The accused had a mark on his left temple that looked like a very small puncture wound with a little blood.

He could not comment on the sobriety of the accused but did note the smell of alcohol coming from him. Bhavikkumar Patel [ 11 ] Bhavikkumar Patel, a Mac’s Confectionery employee, also testified. Mr. Patel was working on February 3, 2013 and during his shift, a man ran into the store and behind the counter. Three men were pursuing him. The fellow who came behind the counter was injured.

Five minutes later, the same man again came running behind the counter with two people following and swearing at him. [ 12 ] About an hour later, this same individual returned to the store and at that time his face was very swollen. He was angry at Mr. Patel for not allowing him to stay behind the counter. Inside the store, he saw one of the males push the complainant against the wall but did not see the complainant push back or strike in any way. In cross-examination, he described a small gate which prevents people from coming behind the counter. This can be locked; however, it was not on the night in question.

He agreed that the front of the store is well illuminated and that there is lighting from the adjacent gas station. [ 13 ] Shellie Bryant and her son were at the Mac’s Confectionery where she saw a man being beaten. He was laying between two cars and there were two men hitting and kicking him. Upon seeing this, she went into the confectionery to tell her son to hurry. At this point, the assailants also entered, along with a third man who told them to “come on, let’s go, that’s enough”. She called the police and identified her voice on the 9-1-1 call when the recording was played in Court.

In the call, she reported that: (

i) a grey Ford was pulling out of the parking lot; (ii) four people had been involved in a fight; (iii) the Ford drove over a boulevard, turned onto Lorne Avenue and took the off ramp toward downtown; (iv) a black Toyota Tundra also left the scene; (

v) she did not know what became of the gentleman who had been beaten; and (vi) the person beaten had a flashlight and was wearing a red jacket and grey sweat pants. [ 14 ] Ms. Bryant first noticed the man wearing the red jacket between two vehicles; he appeared to be holding a 12” flashlight. Two men were kicking and striking him for a minute or less. A third male said “that’s enough, let’s go”. The victim went into the store followed by the two assailants who were yelling and hollering. The Mac’s employee told them to leave. [ 15 ] Trucks were parked in the parking lot in a haphazard fashion.

There were vehicles parked perpendicular to the building but one truck was parked behind those vehicles and parallel to the store. The two perpetrators got into that truck, a grey Ford, and left. The parking lot is not big but she could not say whether a vehicle parked perpendicular to the store would have been blocked in by the Ford. Her opinion was that the parking lot was not well-lit, although there was some light coming from the street lights and adjacent gas pumps.

[ 16 ] Although she saw the two men kicking and swinging at the victim, she did not see any blows connect. The victim was down on the ground. She did not recall anyone on top of him. Surveillance Video [ 17 ] The video from the confectionery (P-3), confirms some of the above evidence. The following is a

summary of my observations: (i) 21:44:49– the complainant appears on screen with a four litre jug of milk; (ii) 21:45:33–the complainant approaches the counter to pay once the previous customer leaves; (iii) 21:45:41–the complainant appears to leave the store; (iv) 21:56:54–the complainant again appears in the store carrying a flashlight in his right hand. The flashlight is facing back toward the camera and the light is on; (v) 21:57:02–the accused, Mr. Kurylyk and Mr. Kurylyk senior enter. The accused and Mr. Kurylyk are in pursuit of the complainant who takes refuge behind the counter. The accused and Mr.

Kurylyk are up against the counter and appear to be speaking to the complainant in an animated manner; (vi) 21:57:30–Mr. Kurylyk senior shepherds his son and the accused out of the store; (vii) 21:57:44–the complainant moves slowly toward the exit; (viii) 21:58:08–the complainant comes back into the store followed by Mr. Kurylyk. The complainant is moving toward the back of the counter when he is given a forceful shove by Mr.

Kurylyk; (ix) 21:58:23–the complainant appears to ask for a pen and paper which are handed to him by the clerk and a customer; (x) 21:58:34– the complainant appears to exit the store; (xi) 22:06:20–uniformed officers appear in the store and speak to Mr. Patel; and (xii) 22:41:36–the video ends with a police officer making notes and looking at a paper he was given by Mr. Patel. 9-1-1 Recording [ 18 ] I also took the opportunity to listen to Exhibit P-1, the recording of the 9-1-1 call made by the complainant. It is a recording that is one minute and 24 seconds long.

In the first 25 seconds, the complainant reported that he is at a Mac’s Confectionery, that there

are two drunk people about to assault him and that they would not let him leave. It then sounds like the telephone receiver is dropped and background noise and voices can be heard. A male voice is heard saying “hey buddy” and “apologize” repeatedly. A male voice is also heard saying “let him get up”. Eventually, the complainant’s voice is heard saying “I apologize” and the phone connection ends. Jon Paul Reaume [ 19 ] On February 3, 2013, Mr.

Reaume, his best friend Mitchell Kurylyk, and Mitchell’s father went to Mac’s Confectionery after watching the Super Bowl game at a local bar where they had a couple of drinks. He was driving the silver Ford F150 and Mitchell Kurylyk was driving a Toyota Tundra that was parked at a 90 degree angle to the south side of the building. The accused parked perpendicular to the Tundra, blocking it in; his truck also was partially behind a red vehicle. His driver’s door was approximately 5 feet from the rear of the Tundra and he estimated that his truck was about 8 feet away from the red car.

He believed that both the Tundra and the car could have exited their parking spots in spite of his position. He and his friend walked in and the complainant told him to move his truck. They argued back and forth; he told the complainant that there was plenty of room for him to exit and the complainant told him to move his truck. The complainant reached into his vehicle and grabbed something black that he used to strike the accused on his left temple. This prompted a physical fight and his friend, Mr. Kurylyk, pulled him off. The complainant struck him across the leg and Mr.

Kurylyk said “get out of here”, so he jumped in his truck and left. [ 20 ] After he was struck with the flashlight he felt stunned and did not recall driving home. [ 21 ] He agreed that he and Mr. Kurylyk would “have each other’s backs”. He said that he wrote what he could remember, but the police officer wrote the majority of the statement. He agreed that his memory was affected by alcohol and the disorientation from being struck. He did not go to the hospital nor did he seek medical attention.

He agreed that there was artificial lighting in the parking lot and volunteered that one would not need a flashlight to see damage to a vehicle. [ 22 ] He agreed that the complainant went to call the police, but denied that he and Mr. Kurylyk followed him to the phone. He was quite certain that the complainant called the police after the fist fight and that there was talk of an apology after the 9-1-1 call. He agreed that he was punching the victim but could not say exactly where he struck him. He also agreed that the complainant went to the ground and that he kept punching but did not recall any kicks.

Further, he agreed that he followed the complainant into the store and that the complainant hid behind the counter. He admitted that he yelled at the complainant but he and Mr. Kurylyk then left. Mr. Kurylyk went back into the store. He denied that he took a fighting stance at the outset; instead, he says, the complainant started the altercation so he just finished it. When shown the photographs of the complainant’s injuries, he agreed that the injuries were caused by being struck a couple of times with his fist. He agreed that Mr.

Kurylyk pulled him off the complainant and that he was not afraid of the complainant. Even though the complainant was not coming after them, he and Mr. Kurylyk chased him into the store. Mitchell Kurylyk [ 23 ] Mitchell Kurylyk is a close friend of the accused and was with him on February 3, 2013. He had two or three drinks at a bar, and he and his father left in a black Tundra truck. They went to Mac’s Confectionery where he parked in front of the building; the accused pulled in behind, partially blocking him and the adjacent vehicle. The complainant’s vehicle was parked to the left of his truck.

He believed there was 4 to 5 feet between their vehicles. The accused’s vehicle was not blocking the complainant’s vehicle as there was “room for a semi to back out”. As Mr. Reaume was walking into the store, the complainant was walking out. The complainant asked the accused to move his truck and was told there was lots of room. The complainant kept arguing, then opened his car, reached in, pulled out a black object and used it to strike the accused in the head. The complainant then looked scared and went to a pay phone. The accused struck him once and he went to the ground.

The complainant was in a fetal position and the accused continued to hit him 4 or 5 times until he was pulled off. The accused turned and went toward the store, and the complainant came up and struck him again with the object. The accused said, “now you deserve this” and struck the complainant a couple of more times. He then ran into the store and the accused and Mr. Kurylyk yelled at him to get back outside. The complainant came out of the store and was yelling so Mr. Kurylyk chased him back in and shoved him.

He denied that he punched or kicked the victim but was within a foot or two while the accused struck him. He agreed that the complainant did not touch him or threaten him. [ 24 ] Mr. Kurylyk says that the complainant hit the accused first on the side of the head and at that point the accused became angry and “beat him up”. This occurred after the complainant went to the telephone. The complainant struck the accused who stumbled

back. The complainant looked at him then ran to the phone and said “these guys are trying to assault me”. That is the point that the accused struck the complainant and took him to the ground. The complainant was struck while he was on the phone and when he went to the ground, the accused hit him 4 or 5 more times. [ 25 ] With respect to the 9-1-1 call that was played in Court, Mr. Kurylyk indicated that the only part not captured in that call is the complainant striking the accused in the head. [ 26 ] Mr. Kurylyk described the parking lot as having lots of artificial light.

He did not see the complainant check the back of his car; rather, he retrieved an object from his vehicle and came out in a threatening manner. [ 27 ] In cross-examination, he said that he may have had one drink at his brother’s house before going to the bar. At the bar, he had two or possibly three single drinks. He, his father and the accused left the bar around 10:00 o’clock and went to the confectionery where he parked in front of the building. There was no spot for the accused. The complainant asked the accused to move his truck and the accused said “no, we’ll be right out and you can wait”.

He agreed that moving the vehicle would have been the polite thing to do. Derogatory terms were used toward the complainant before he came at the accused and struck him with the flashlight. The accused took a couple of steps back; the complainant looked at him and ran to the pay phone. He said that the accused was angry but the complainant struck him first so the accused simply defended himself. He agreed that the accused struck the complainant 4 or 5 times in the face and upper body while he was on the ground. The accused had one knee on the complainant and one leg braced to the right.

He did not see the accused administer any kicks. He tried to get the accused away from the complainant. As they turned to go back into the confectionery, the complainant struck the accused on the leg with the flashlight. He did not see this blow connect with the accused, he simply saw his leg move and concluded from the sound and the motion that he had been struck. [ 28 ] He and Mr. Reaume chased the complainant into the store and when they turned to leave the complainant came out again. At that point, Mr. Kurylyk asked him if he had not learned yet.

He described the complainant as hysterical and opined that they had given him “ a chance” but he kept coming back. POSITIONS OF THE PARTIES [ 29 ] Both counsel agree that there are issues of credibility to be resolved. Counsel for the accused argues that the version of events described by the complainant should be rejected. The Court is asked to accept that Mr. Simpso struck the first blow with a flashlight. In verbal argument, counsel for the accused submitted that what followed was either self-defence or a consensual fight.

In a further written brief, defence relied strictly on consent. [ 30 ] Counsel for the Crown urges the Court to accept the version put forward by the complainant, particularly as it is corroborated, in part, by the evidence of the independent witness, Ms. Bryant. The Crown says the evidence is not consistent with a consensual fight given the evidence of Mr. Simpso that he did not want to fight and he called the police.

In addition, the Crown argues that if the Court were to find that the complainant did engage in a consensual fight, any consent was vitiated by the degree and seriousness of the injuries sustained by the complainant. ISSUES [ 31 ] The issues are straightforward: 1. Did the parties engage in a consensual fight? 2. Did the accused act in self-defence? 3. Have the elements of the offence alleged been proven beyond a reasonable doubt?

LAW [32] Section 265(3) of the Criminal Code says, in part:

(3) For purposes of this section, no consent is obtained where the complainant submits. . .by reason of threats or fear of the application offorce to the complainant. . .

(4) Where an accused alleges that he believed that the complainant consented to the conduct that is the subject matter of the charge, ajudge, if satisfied that there is sufficient evidence and that if believed by the jury, the evidence would constitute a defence, shall instructthe jury, when reviewing all the evidence relating to the honesty of the accused’s belief, to consider the presence or absence ofreasonable grounds for that belief. [33] Consent, even if freely given, can be vitiated when serious bodily harm results.

This is premised on the philosophy thatpeople are entitled to engage in consensual fights without the consequence of assault charges. However, there are limits to the type offighting to which people can consent. In R. v. Azevedo, 2012 ONSC 6052, at para. 6, the Court pointed out these limitations referring toProfessor Hamish Stewart and the Supreme Court of Canada decisions of R. v. Jobidon, (SCC), [1991] 2 S.C.R. 714 andR. v. Paice, 2005 SCC 22 , [2005] 1 S.C.R. 339. The Court states: Professor Hamish Stewart has noted that the vitiation of consent to assault is a public policy determination.

He observes that differentjurisdictions have adopted different thresholds. Specifically, he compares England, France, the United States of America, and Canadainsofar as the different policy applications and notes that in all jurisdictions “consent is not a defence to the intentional infliction ofserious bodily harm, unless the serious bodily harm is intentionally inflicted in the course of an activity that is socially recognized aslawful or valuable” which he says might include rough sports.

Implicitly a bar room brawl or drunken fist fight would not be sociallyrecognized as lawful or socially valuable. (Emphasis mine) [34] At para. 7 of Azevedo (supra), the Court goes on to say: Justice Gonthier in R. v. Jobidon, concludes, after a detailed review of the jurisprudence including English law, that the standard orthreshold for vitiation of consent is “minor hurt or trivial bodily harm”–equivalent to the test for ‘bodily harm’ as defined in the Code.

The Supreme Court of Canada again considered this issue in Paice but in the context of a defence of self-defence and defined thethreshold as “serious bodily harm both intended and caused” for consent to be vitiated. The Court said that it was reaffirming R. v.Jobidon. In R. v. Quashie, the Ontario Court of Appeal ordered a new trial based on misdirection of the jury that “in order for bodilyharm to vitiate consent, they had to find both that the appellant had intended to inflict bodily harm and that the appellant had caused herbodily harm”. The court held that the instruction was not in accordance with R. v.

Jobidon and referenced “serious harm intended andcaused”. These decisions are followed by R. v. McDonald, which unequivocally held that the threshold for vitiation of consent is seriousbodily harm. (Emphasis mine) [35] Bodily harm is defined in s. 2 of the Criminal Code as: . . .any hurt or injury to a person that interferes with the health or comfort of the person and that is more than transient or trifling innature. [36] In R. v.

McCraw, (SCC), [1991] 3 S.C.R. 72, the Supreme Court considered the nature of serious bodily harmand said at para. 21: Giving the word “serious” its appropriate dictionary meaning, I would interpret “serious bodily harm” as any hurt or injury that interferesin a grave or substantial way with the physical integrity or well-being of the complainant. Thus “serious bodily harm” does not requireproof of the same degree of harm as described in s. 268 of the Code; that is to say the wounding, disfiguring or endangering the life ofthe complainant.

Yet it requires greater harm than the mere “bodily harm” described in s. 267; that is hurt or injury that interferes withthe health or comfort of the complainant and that is more than merely transient or trifling in nature.

ANALYSIS 1. Did the parties engage in a consensual fight? [37] As is often the case, the Court is obliged to make determinations of fact before turning to the legal issues at play. Whenconflicts in the evidence are apparent, it is incumbent on the Court to view the evidence through the lens of R. v. W.(D.) (1991), (SCC), 63 C.C.C. (3d) 397 (SCC) and R. v. McKenzie (1996), (SK CA), 141 Sask. R. 221 (Sask. C.A.). [38] I have carefully listened to, reviewed and considered all of the evidence as well as the able oral and written submissions ofcounsel.

It is clear on the evidence that the accused is of the belief that the complainant consented to a fight. The issue is whether thereare reasonable grounds for that belief. [39] It is undisputed that the conflict began when the complainant exited the store to find that his vehicle was blocked in by theaccused’s truck. I do not accept the evidence of Mr. Kurylyk that “there was room for a semi to back out”; rather, it is an example ofover-statement and the unreliability of his evidence. I accept that the complainant took his flashlight from his vehicle to look at the rearof his car.

There is some support for this in the fact that the flashlight was on each time the complainant ran into the store and it ishighly improbable that one would switch on the light if one intended to use it as a weapon. It is common ground that the complainantasked the accused to move his truck and that a verbal argument ensued. As counsel suggested, the accused was “obnoxious” in hisresponse, refused to move his truck and told the complainant that he could wait. [40] There are discrepancies in the evidence as to what transpired next.

The accused says that during the verbal argument, thecomplainant grabbed an object and struck him in the head which is what prompted the physical altercation. The complainant did not callthe police until after the fight. This is clearly inaccurate as the sounds of the fight are heard on the 9-1-1 tape and last approximately oneminute as testified to by Ms. Bryant. [41] Mr. Kurylyk also said that the accused and the complainant argued and the complainant pulled a black object out of his car,struck the accused in the head and ran to the pay phone.

The accused then followed and punched the complainant one time; thecomplainant went to the ground and the accused continued to strike him four or five more times. [42] Overall, after close examination of the evidence, I find that neither the accused nor Mr. Kurylyk were able to provide alogical, consistent and coherent accounting of events. It is my view that the accused and Mr. Kurylyk were under the influence ofalcohol and that their memories were compromised as a result.

The accused acknowledged that his handwriting later that night wasvirtually illegible as the result of alcohol he consumed and the blow to his head. In giving his testimony, he made statements such as:“from what I remember”, “don’t know if I was all there”, and “don’t remember driving home”. Further, the accused was obviouslymistaken when he stated that the call to the police occurred after the fight; he is also mistaken to characterize the conduct of thecomplainant as aggressive. Based on the above, this Court is of the view that the memory of the accused was compromised and notparticularly reliable.

Where the defence evidence conflicts with that of the complainant, I prefer and accept the testimony of thecomplainant and Ms. Bryant. [43] What is clear from the evidence is that the complainant made a simple request of the accused and the accused and Mr.Kurylyk responded in a most inappropriate way. It is also clear that when confronted by these two men, the complainant wasintimidated and feared an assault at their hands. This is confirmed not only by his call to the police but by his statement and demeanourwhile making that call. Further, there is no dispute that the accused and Mr.

Kurylyk were aggressive in their demeanour and actions. On the 9-1-1 call, their voices can be heard shouting and calling the complainant on to fight. Then one of them repeatedly says,“apologize”. It is my view that these statements occurred after the complainant lashed out with the flashlight. I accept the complainant’sevidence that the accused and Mr. Kurylyk followed him to the phone.

I infer from the evidence that the complainant was intimidatedand struck the accused, not out of any desire to engage in a physical fight, but to get away or to keep the two men away from him. [44] The video from the confectionery also confirms their aggressive behaviour and depicts them confronting the complainant who

has taken refuge behind the counter. It also confirms the evidence of Ms. Bryant that a fourth male (Mr. Kurylyk senior) urged the accused and the complainant away. The video demonstrates the degree of aggression of both men and the force with which the complainant was shoved by Mr. Kurylyk. Mr. Kurylyk’s evidence that the accused struck the complainant in anger and that the injuries to the accused could have been significantly worse if the accused had not been pulled away further confirms the degree of aggression of the accused. I have absolutely no doubt that the accused and Mr.

Kurylyk were the aggressors throughout this incident. [ 45 ] Further, on the evidence, it cannot be said that it was reasonable for the accused to believe that the complainant wanted to fight; the evidence and all of the actions of the complainant point in the opposite direction. He testified that he had no desire to fight, he walked away from the accused; he called the police and he ran into the store and behind the counter in order to get away.

The only act by the complainant that might be interpreted as consent is a blow with the flashlight, which I am satisfied occurred only in the face of the aggressive, and likely drunken behaviour of the accused. The Court cannot infer consent where the complainant has used force because he justifiably feared an assault upon himself. [ 46 ] If I am in error with respect to the issue of consent, it is my view that the nature and degree of the injuries sustained by the complainant constitute serious bodily harm and would vitiate any consent that might have been given.

The injuries were more than transient or trifling, and they clearly interfered in a substantial way with the health and well-being of the complainant. Photographs of these injuries were tendered as P-2 and reveal that his face is extensively bruised, his left eye is swollen shut, and the white of his eye is red with blood. It is undisputed that it took two weeks to one month for all of these injuries to resolve. [ 47 ] Further, I have no hesitation in finding that the accused intended to cause serious bodily harm. Here, the complainant was knocked to the ground and the accused continued to punch him.

I also accept the evidence of the complainant that the accused kicked him while he was on the ground as the kicking motions were confirmed by Ms. Bryant, who I found to be a candid, fair and straightforward witness. A person is seen to intend the natural consequences of their actions and I conclude from the actions of the accused that he intended to cause some significant injury to the complainant. In R. v. Storey , 2010 NBQB 86 , the victim was seated in a vehicle when the accused delivered one blow to his face causing significant injury.

There, the Court enunciated a number of factors that might be taken into account in determining whether serious bodily harm was intended and indicated that the area of the body struck was one consideration. At para.110 of that decision, the Court said: “it is reasonable to assume that anyone standing and striking that area of the body of a person almost in a sitting position with a closed fist would be taken to know that serious bodily injury was inevitable”.

This applies equally to the case at hand: to continue to strike someone in the face and head while they are on the ground in a fetal position can only be intended to cause serious injury. This seems to have been patently clear to Mr. Kurylyk, who pulled the accused away from the complainant before, in his words, the complainant was “injured worse”. 2. Did the accused act in self-defence? [ 48 ] Although self-defence was raised but not argued, I will address the question only briefly. Self-defence could arise only if the Court was to find that the complainant committed an unjustified assault upon the accused.

I reject the evidence of the accused to that effect and find that any assault by the complainant was as the result of the intimidating and threatening conduct of the accused and Mr. Kurylyk. Further, the force used by the accused well exceeded what was reasonable under all of the circumstances and it cannot be said, given the aggressive demeanour of the accused throughout this incident, that the assault was committed for the primary purpose of defending himself. 3.

Have the elements of the offence alleged been proven beyond a reasonable doubt? [ 49 ] Given the above findings, I am satisfied beyond a reasonable doubt that the accused committed an unjustified assault on the complainant and that bodily harm resulted. Accordingly, he is found guilty as charged. _____________________________ M. L. Gray, J