R. v. Lachance, 2012 MBPC 23

CITATION: R. v. Lachance , 2012 MBPC 23 Date: 20120210 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) P. Edgett, ) for the Crown ) and ) ) ) Daniel Arthur Lachance ) M. Wasylin, Accused ) for the Accused ) ) ) Reasons for Decision delivered ) February 10, 2012 ) Curtis P.J. [ 1 ] Daniel Lachance (“Lachance”) stands charged of assault cause bodily harm as a result of a fight which took place in Beausejour, Manitoba, on the 9 th of August, 2007. The key issue is consent. Background [ 2 ] Walter Bychuk (“Bychuk”) was in Beausejour with a crew of land surveyors in August of 2007.

He and his colleagues had completed work for the day and had gone to the Beausejour Hotel after dinner for a couple of drinks and to watch strippers. The rest of the crew had gone back to their rooms for the evening but Bychuk and one other stayed to watch some more of the entertainment. During the course of the evening, Bychuk apparently bought drinks for the table. One of the people at the table was the ex-girlfriend of the accused, Daniel Lachance. There began to be some “yipping” back and forth between the two of them.

In due course, they ended up outside and became involved in a physical altercation. [ 3 ] Walter Bychuk gave evidence that he was trying to apologize to Lachance and that he did not want to engage in a fight. The evidence of the other Crown witnesses, as well as defence witnesses, painted the picture that while he may have been saying he did not want to fight, his actions showed the opposite. It appears that shortly before they got outside of the hotel Bychuk was challenging Lachance to “come outside, come outside”. Lachance gave evidence that he responded to the challenge. Bychuk took off his shoes.

He was wearing flip-flops at the time and explained that he did not want to get beat up in flip-flops. He also said he could not move around very well in them. He took off his t-shirt as he explained he thought that would give Lachance less to hang on to. Lachance took off his shirt, describing it as a dress shirt which he did not want to get ruined. There was also evidence that a friend of Bychuk’s who worked at the bar tried to get him into her car in order to get him out of there and away from a fight she could see coming, but he would not get into the car.

He moved a couple of steps away from the car toward Lachance as the latter was approaching and the two began to engage in what is described in the beginning as something of a wrestling match.

[4] There was a video taken on a cell phone by one of the witnesses. It is of poor quality but does show the general course of thefight. The fight itself ended when Katrina Lavoie (who is the owner of the car who had tried to get Bychuk out of there shortly beforethat) went up and hit Lachance on the side of the head. [5] The injuries sustained by Bychuk included a fractured hand (the middle bone), a fractured nose, lumps all over the head, cuts,black eyes, and a cut on the shoulder. He was off work eight weeks because of the hand (until the cast came off and after that a couple ofweeks of physio).

He still suffers some effects as a result of the hand tightening up from time to time. [6] I am satisfied on the evidence that this incident can be characterized as a consensual fistfight. Whatever Bychuk said withrespect to his not wanting to fight, his apologizing, and saying he was not going to fight, his actions, as I indicated earlier, conveyed theopposite. As it was described, yipping back and forth followed by his telling Lachance to “come outside, come outside”, was taken byLachance as an invitation to come outside and fight.

In fact, it would appear that most of the people in the bar took it in the same fashionbecause Court was told the bar emptied out and actually was closed down when everybody went outside to watch the fight. The fact thatBychuk had a chance to get in the car as he was being urged to do so by his friends but did not, and instead took off his shoes and shirtand stepped away from the car to engage with Lachance are indications that he was prepared to take on the fight challenge. At least thatis how Lachance took it, and if he misunderstood Bychuk’s intention, then it is understandable that he did so. The Law [7]

Section 265 of the Criminal Code of Canada defines the offence of assault: 265.

(1) A person commits an assault when (

a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;... [8] In this case, Lachance is charged under s. 267(

b) which says: 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. [9] “Bodily harm” is defined in s. 2 as: ‘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. Analysis [10] I note at the outset that based on the evidence and the facts as I have found them this began as a consensual fight.

The issue iswhether or not consent was vitiated at some point during the physical altercation. [11] The definition of assault describes assault as the intentional application of force without the consent of another person. Anindividual can consent to the application of force but the law does not allow that consent to be unlimited. A person cannot consent to theapplication of force which causes bodily harm except in certain instances within the parameters of some things such as sports. Eventhere, there are rules and limits prescribed to regulate conduct to prevent injury and personal harm.

Such is not the case here. Counselreferred me to the case of R. v. Jobidon, (SCC), [1991] 2 S.C.R. 714, which reviewed the common law development ofthe law of assault in both English and Canadian legal history. The Supreme Court came to the conclusion that there is no social utility infistfights. In Jobidon, a fistfight found its way into the parking lot of a bar where the accused punched the victim, knocking him backonto the hood of a car. A few punches later the victim was taken to the hospital where he died.

At page 22 Gonthier J. observed: ...The sanctity of the human body should militate against the validity of consent to bodily harm inflicted in a fight. He goes on to state on page 23: The limitation demanded by s. 265....is one which vitiates consent between adults intentionally to apply force causing serious hurtor non-trivial bodily harm to each other in the course of a fist fight or brawl. (See also R. v. Paice, 2005 SCC 22 , [2005] S.C.J. No. 21, a similar situation.) [12] In addition, intent has to be considered. As observed by Welsh J.A. at paragraph 13 in R. v.

Sullivan, 2011 NLCA 6 ,when dealing with intent: The test to be applied when assessing whether consent has been vitiated is whether serious bodily harm was caused and was intended. [13] Further, at paragraph 24: ...the necessary mens rea will be proven if it is established beyond a reasonable doubt that force was applied recklessly and the risk ofserious bodily harm was objectively foreseeable. [14] In that case, consent was vitiated in what started as a consensual fistfight when the complainant suffered serious bodily harm asa result of the reckless actions of the accused.

[ 15 ] Applying these principles to this case, I find that intent can be inferred from the reckless use of force. It is clear the injuries suffered by Bychuk happened in the course of the fight. It is also clear that had Ms Lavoie (or someone else) not intervened in the fight when she did, the accused would have continued punching the complainant. [ 16 ] When people engage in this kind of activity they run the risk of causing bodily harm or worse. If it happens, there is a price to pay. Here, it could have as easily been the complainant who was charged if the fight had gone the other way.

I repeat the comment made by Justice Gonthier in Jobidon , supra , “there is no social utility in a fistfight”. Society does not condone it even if people are prepared to watch it as they were in this case. [ 17 ] Given the nature of the injuries suffered by the complainant, I am satisfied that the injuries amount to bodily harm as defined in s. 2 of the Criminal Code . In the result, a conviction will be entered on the charge of assault cause bodily harm. Original signed by Judge K. M. Curtis P.J.