R. v. D.F., 2015 ONCJ 665

WARNING The court hearing this matter directs that the following notice be attached to the file: This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and

section 129 of the Act. These provisions read as follows: 110. Identity of offender not to be published. —

(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act. . . . 111. Identity of victim or witness not to be published.—

(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person. . . . 129. No subsequent disclosure.— No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act , which deals with the consequences of failure to comply with these provisions, states as follows: 138. Offences.—

(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or

section 129 (no subsequent disclosure) . . . (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or (

b) is guilty of an offence punishable on

summary conviction. ONTARIO COURT OF JUSTICE sitting under the provisions of the Youth Criminal Justice Act , S.C. 2002, c. 1, as amended; CITATION: R. v. D.F. , 2015 ONCJ 665 DATE: 2015·November·04 COURT FILE No.: Toronto BETWEEN: HER MAJESTY THE QUEEN — AND — D.F., a young person Before Justice E. B. Murray Reasons for Judgment released on November 4, 2015

Ms. Lynn Bridger .................................................................................... counsel for the Crown Mr. Ugo Cara ................................................................................ counsel for the accused D.F. MURRAY, E. B. J.: [ 1 ] D.F. is charged with assaulting T.T. on December 18, 2014, causing bodily harm to T. by reason of the assault. [ 2 ] The incident arises from a schoolyard fight sparked by a competition between two groups of children (one group consisting of Grade 7’s and one group consisting of Grade 8’

s) over possession of a soccer ball. At the time of the incident, D. was 12 years old and in Grade 7; T. was 13 years old and in Grade 8. [ 3 ] It is agreed that during the conflict, D. punched T. in the face, hitting him in the mouth, on which he had braces. It is agreed that as a result of this punch, T.’s front tooth was dislodged, and that T. was required to undergo extensive dental work to have the tooth repaired. [ 4 ] At the trial in this matter I heard from T., the complainant; Dane Lowry, the school principal; Carly Noda, a teacher at the school; and D., the defendant. Mr. Lowry’s evidence was not relevant to the issues before me, and plays no

part in this decision. The Law [ 5 ]

Section 265 of the Code, set out below, deals with the elements of the offence of assault. 265.

(1) A person commits an assault when • without the consent of another person, he applies force intentionally to that other person, directly or indirectly; • he attempts or threatens, by

an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or • while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs. [ 6 ]

Section 267 of the Code creates the offence of assault causing bodily harm. 267. Every one who, in committing an assault, • carries, uses or threatens to use a weapon or an imitation thereof, or • 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

summary conviction and liable to imprisonment for a term not exceeding eighteen months. [ 7 ]

Section 2 of the Code defines bodily harm. "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 merely transient or trifling in nature.

Section 34 of the Code sets out the test for an individual who asserts he acted in self defence. 34.

(1) A person is not guilty of an offence if • they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person; • the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and • the act committed is reasonable in the circumstances. Factors

(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors: • the nature of the force or threat; • the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;

• the person's role in the incident; • whether any party to the incident used or threatened to use a weapon; • the size, age, gender and physical capabilities of the parties to the incident; • the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat; • (f.1) any history of interaction or communication between the parties to the incident; • the nature and proportionality of the person's response to the use or threat of force; and • whether the act committed was in response to a use or threat of force that the person knew was lawful. [ 8 ] In this case, I must ask myself the following questions. 1.

Did D. intentionally apply force to T.? 2. If intentional application of force is established, was the force applied without T.’s consent? Did the Crown demonstrate beyond a reasonable doubt that T. did not consent to the application of force by D.(e.g., a consensual “schoolyard scuffle”)? 3. Did T. suffer bodily harm as a result of the force applied by D.? 4. If it is established that T. consented to fight D. and bodily harm is proven, does the harm does vitiate the consent? 5. If there was no consent to the fight and T. suffered bodily harm as a result of D. punch, was D. acting in self-defence?

Did D. use excessive force? [ 9 ] The onus is, of course, on the Crown to demonstrate all the elements of the offence beyond a reasonable doubt, and to demonstrate that D. fails to satisfy at least one prong of the test set out in s. 34 of the Code. [ 10 ] Given that credibility is in issue, I have assessed the evidence in accordance with the principles in R. v. W.D., (1991) 1.

S.C.R. 742: • First, if you believe the evidence of the accused, obviously you must acquit. • Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. • Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [ 11 ] I note that the order of this analysis is not meant to be a lock-step format, provided that the fundamental principle is respected, and that the entirety of the evidence should be considered when a determination is made [1] .

The evidence Facts not in dispute [ 12 ] A number of facts in the case are not in dispute. 1. There was no history of hostility between D. and T.—in fact, neither boy knew the other, except by sight. 2. At the time of the incident, D. and T. were comparable in stature. T. may have been a bit taller, and D. a bit bigger. 3. The altercation took place at lunch hour on a soccer field adjacent to the school, a field with two nets. 4. D.and his Grade 7 friends were on the field first, playing with a ball they had signed out from the office. 5. T. and his Grade 8 friends wanted to play, but had no ball.

Although they had previously played soccer with some Grade 7’s, they had never played with this group. 6. A conflict erupted between D. and T.. There is disagreement between the boys as to the particulars of that conflict which is set out below, but it is agreed that at the conclusion of the conflict, D.punched T. in the face and T.’s tooth was dislodged. T.’s evidence

[ 13 ] T. testified that he and his friends attempted to play with D. group. That group moved to the other side of the field, which suggested to T. that they might not want to play with them, but T.’s group followed them across the field. T.’s evidence was that he was fouled a number of times by the Grade 7’s, with someone pushing him down and another boy jumping on his back.

T. acknowledged that he may have said to the Grade 7’s “Do you want to fight me?”, but added that this was during the game, and he did not really want to fight. [ 14 ] T.’s evidence is that his own friends concluded after a few minutes that they should withdraw from their attempts to play, but that he persisted a little longer. Eventually T. agreed that they should withdraw from the game, and he and his friends walked to the other side of the field.

T. said that he was aware that D. and the Grade 7’s were following them, but he had his back to that group. [ 15 ] T. testified that someone, or maybe more than one person, pulled his legs out from under him. He got up, turned and saw D. and his friends. T. believed that D. was at least one of his assailants. [ 16 ] T.’s evidence is that he pushed D. on his chest, using both hands, and that D. responded by punching him in the face. T. did not address why he pushed D., except to say that he was in his “personal space”. [ 17 ] T.’s friends reacted in alarm, calling attention to the blood coming from T.’s mouth.

T. took out his phone, and saw in the reflection of his face that his front tooth was hanging loose, caught by his braces. His friends escorted him to the office. His mother was called; she took him to get dental treatment. D.’s evidence [ 18 ] D.testified that his perception was not that T. and his Grade 8 group were trying to play with them; he said that T.’s group crashed their game, took their ball, and tried to monopolize it. [ 19 ] D. said that at one point T. stopped kicking the ball and picked it up with his hands; D. grabbed it from him.

D. testified that this happened again, and that when he had retrieved the ball, T. pushed him and he pushed back. [ 20 ] According to D., he and his Grade 7 friends then started to walk away to the other side of the field, when he felt someone hit him on the head from behind. He turned, saw T., and concluded that T. hit him. In cross-examination, D. said that he was not scared of T., but “he hit me, so I can defend myself”. [ 21 ] After D. punched T., he saw blood on his hands and was “scared”. He ran to a nearby park and called his mother.

His mother came quickly, and took him to the principal’s office, and later to the police station, where he was charged. [ 22 ] When asked by his lawyer if he would have dealt with the situation in a different way today, D. said that he would have “walked away”, and gone to the office to report the problem. Carly Noda’s evidence [ 23 ] The Crown called Carly Noda, a teacher who witnessed part of the altercation between D. and T.. [ 24 ] Ms. Noda was eating lunch that day in a second floor classroom that faced the soccer field.

She became aware that students were starting to crowd around in one area of the soccer field, and walked to the window. [ 25 ] Ms. Noda testified that she saw D., whom she recognized from the hallway, punch another student twice in the face. She did not recognize the other student, whom she described as shorter than D.. Ms. Noda called the school office to report the problem. [ 26 ] Ms. Noda estimated that she was about 40-50 feet [2] away from D.when she made this observation.

In cross-examination she said that although her view of D. and the other student was partially blocked, she had a good view of both boys from above the waist. Positions of the parties [ 27 ] Defence counsel submits that T.’s evidence should not be accepted on the issue of who started the fight.

He points to what he says is an inconsistency in that evidence, alleging that T. initially testified that he was not sure who of the Grade 7’s had pulled his legs out from under him and later asserting that he was certain that one of his assailants was D.. [ 28 ] Counsel argues that on T.’s own evidence, T. pushed his client, and that his client acted in self defence by responding with a punch. Counsel submits that I should prefer the evidence of both boys rather than that of Ms. Noda as to whether there was one punch or two, as Ms.

Noda was a considerable distance from the fight, while the boys were in the midst of the action, and were best placed to know how many punches were thrown. [ 29 ] Defence counsel submits further that in assessing whether the punch was a reasonable action to take in self defence, that it would be an error to focus as strongly on the effect of that punch—the broken tooth—and that other relevant factors such as D. extreme youth and lack of maturity should be taken into account. [ 30 ] The Crown submits that the evidence of T. should be accepted over that of D., as D.had a motive to lie, to escape a finding of guilt.

She argued that Ms. Noda’s evidence on the number of punches should be accepted, as she had no reason to misrepresent the facts, while the boys were likely caught up in the emotion of the fight and less likely to remember the details clearly. [ 31 ] The Crown argues further that it is clear that D. simply lost his temper that day, with serious negative results for T. and his family—a broken tooth, a series of expensive and painful dental appointments, and a few days missed from school.

The Crown argues that even if D. account of the conflict is accepted, his response was excessive by any standard, and that self defence cannot be a viable defence here.

What evidence do I accept? [ 32 ] I accept the evidence of each boy that each of them engaged in some aggressive behaviour that day, behavior outside the scope of expected physical contact in the course of a soccer game. D. admits a punch, and T. admits a push. [ 33 ] I am, however, unable to make findings of fact with respect to who struck first in this conflict, or whether either boy engaged in the other acts of aggression alleged. [ 34 ] In my view, both D. and T. gave their evidence clearly, and without internal inconsistency or inconsistency with other evidence which I accept.

My review of the evidence does not support defence counsel’s argument that T. changed and improved upon his evidence about who pulled his legs out from under him. Neither boy was shaken in cross-examination. [ 35 ] I do not accept the Crown’s submission that D. had a reason to lie in order to escape a finding of guilt.

The Ontario Court of Appeal has cautioned frequently that this reasoning is impermissible, in that it displaces the presumption of innocence by assuming that a defendant “will lie to secure his acquittal”. [3] [ 36 ] I have no reason to accept T.’s testimony on any of the disputed facts over the testimony of D.. I do not have the evidence from any of the 5 or 6 boys who witnessed the whole incident, as they were not called as witnesses. I do have the evidence of Ms.

Noda, but that is of limited utility to me, as she did not witness the whole incident. [ 37 ] As to the issue of whether D. punched T. once or twice, I accept the evidence of the boys on this point over that of Ms. Noda. I agree that she had no reason to misrepresent what she saw, but given her considerable distance from the conflict and the boy’s unanimity on the issue, I accept their evidence that D. threw one punch. Analysis [ 38 ] There is no argument that D. intentionally applied force to T. on the day in question, and that T. as a result suffered bodily harm.

Did T. consent to fight ? [ 39 ] Has the Crown demonstrated beyond a reasonable doubt that T. did not consent to the force—in other words, that he did not agree to fight D.? As can be seen above, neither lawyer argued that this was a consensual fight. When questioned by me on this point, the Crown said that the boys’ interaction did not have the hallmarks of a consensual fight, in that there was no agreement to meet to fight at a specific place and time. That does not settle the matter.

As has been held in other cases, in some instances consent can be inferred from the circumstances or a defendant can have an honest but mistaken belief in consent based on the complainant’s actions and the circumstances [4] . [ 40 ] Another judge [5] has offered a helpful observation as to how a court may assess whether a fight was consensual: There was no evidence of any direct verbal consent - there rarely is. Many fights, like this one, begin with someone being aggressive. Someone pushes, the other pushes back, and the fight sallies on.

In the absence of a clear verbal consent, what actions can be deemed to constitute an implied consent? The actions that can collectively or individually constitute an implied consent will vary in each case. The following factors warrant consideration in most cases:

a) Who initiated the fight?

b) Did the victim have a realistic choice to avoid fighting?

c) Was the victim capable of making a choice?

d) Were the actions of the victim more consistent with self-defence than a consent to fight?

e) Did the accused believe that consent was implied, and were there reasonable grounds for this belief? [ 41 ] The Crown bears the onus of establishing that T. did not consent to the application of force by D.—i.e., in this case, to fight with D.--or that there were no reasonable grounds upon which D. could have believed that T. was consenting to fight. Neither boy was asked the question as to whether he agreed to the fight, but there is some evidence from which it could be inferred that D. could have believed that there was consent.

That evidence includes T.’s early question” Do you want to fight me?”; T.’s own evidence that after his legs were pulled from under him, he stayed to deal with D. rather than retreating with his friends to the school; and T.’s two-handed push of D.. [ 42 ] In my view, the Crown has not met its onus of establishing that D. application of force was without T.’s consent. That, however, does not end the matter, as bodily harm resulted from the fight. Was consent vitiated? [ 43 ] The Supreme Court of Canada held in R. v.

Jobidon [6] that the consent of the complainant can afford no defence to an adult charged with assault causing bodily harm arising out of a consensual fight. The court limited its ruling to fights involving adults, stating [7] : On this definition, combined with the fact that the test is restricted to cases involving adults, the phenomenon of the "ordinary" schoolyard scuffle, where boys or girls immaturely seek to resolve differences with their hands, will not come within the scope of the limitation. That has never been the policy of the law and I do not intend to disrupt the status quo.

However, I would leave open the question as to whether boys or girls under the age of 18 who truly intend to harm one another, and ultimately cause more than trivial

bodily harm, would be afforded the protection of a defence of consent. (As was the accused in R. v. Barron (1985), (ON CA), 23 C.C.C. (3d) 544 (Ont. C.A.), in which a boy was charged with manslaughter, via assault, for pushing another boy down aflight of stairs thereby causing the boy's death.

The trial judge held that the deceased boy had impliedly consented to rough-housing onthe stairs as they descended.) The appropriate result will undoubtedly depend on the peculiar circumstances of each case. [44] Appellate cases following Jobidon have offered guidance as to the circumstances when consent will be vitiated in casesinvolving bodily harm when the offender is under 18 years of age. In R. v.

M.(S.) [8]the Ontario Court of Appeal set out three factorswhich a court should consider in deciding whether the consent of the complainant gives a young person a defence to a charge of assaultcausing bodily harm: • The intent of the defendant when he or she struck the blow; was the intent to cause serious or non-trivial harm? • The nature of the assault • The harm caused by the assault. [45] In the analysis found in these appellate cases, the intent of the defendant appears to be the critical factor. [46] R. v.

M.(S.) involved an appeal of a trial decision in which a judge convicted the 16 year old defendant of assault causingbodily harm (a swollen nose and headaches) in a consensual fight, despite the judge’s finding that the defendant did not intend to causethe complainant serious harm. It was not clear who started the fight. The Court of Appeal allowed the appeal and quashed theconviction, emphasizing that the trial judge had not found that the defendant intended to cause the complainant serious or non-trivialharm. [47] In R. v.

T.B.B.[9] the Prince Edward Island Court of Appeal dismissed an appeal from a trial judge’s acquittal of a 16 yearold boy charged with assault causing bodily resulting from a consensual fight in which the 15 year old complainant had suffered a seriouseye injury. The Court of Appeal emphasized that the trial judge had not found that the defendant intended to cause the complainantserious harm. [48] In R. v. W. (G.) The Ontario Court of Appeal upheld the conviction of a 16 year old on a charge of assault causing bodilyharm.

The defendant in that case was larger than the complainant, and delivered three blows to the face which resulted in thecomplainant suffering a broken nose and eye injury. In upholding the conviction, the Court of Appeal noted that the trial judge hadfound that the defendant intended to cause serious harm to the complainant. [49] In this case I have no direct evidence that D. intended to cause serious harm to T..

There are cases in which that intent can beinferred from the circumstances; for example, if a young defendant attacks with a knife, an intent to cause serious harm might be inferredfrom the choice of weapon. There are some cases in which the level of maturity of a youthful defendant, coupled with the type ofconduct he exhibits, may lead the court to infer an intent to cause serious harm. For example, in R. v. C.L., [10] an appeal court upheldthe conviction of a 17 year old defendant charged with assault causing bodily harm.

While in in a consensual fight at school, thedefendant hit the complainant in the face, breaking his nose. Although there was no direct evidence of intention to cause serious harm,the trial judge inferred that intent. The trial judge described the defendant as “a strapping, athletic young man”, not a young child; basedon the defendant’s age and level of maturity, the trial judge found that he must have foreseen that his blow would have resulted in seriousharm. [50] In the instant case, the harm inflicted was serious, and although only one blow was delivered, it had sufficient force todislodge a tooth.

I cannot find, however, that D. intended to cause serious harm. I have no direct evidence of such intention. D. was 12years old at the time of this incident, and having some academic problems in Grade 7. There is a significant difference between thematurity and cognitive abilities of a 12 year old and a 17 year old.

I am unable to infer that, in the midst of a schoolyard fight with anolder classmate, D. must have foreseen that his punch was likely to cause serious harm to T.. [51] I do not find that the complainant’s consent to the fight was vitiated in this case. [52] Given my decisions above, I do not need to deal with the claim of self -defence offered by D.. [53] I find D. not guilty of the charge. Released: November 4, 2015 Signed: Justice E. B. Murray