2022 QCCQ 7865, 2022 QCCQ 7865

LSJPA — 2228 2022 QCCQ 7865 COURT OF QUÉBEC CANADA PROVINCE OF QUEBEC DISTRICT OF [...] LOCALITY OF [...] “Youth Division” No.: 540-03-015628-216 DATE: July 7, 2022 ______________________________________________________________________ PRESIDING: THE HONOURABLE SOPHIE GRAVEL, J.C.Q. ______________________________________________________________________ THE QUEEN v.

X, Born on [...], 2005 ______________________________________________________________________ JUDGMENT ______________________________________________________________________ NOTE : Under the Youth Criminal Justice Act , no person shall publish the name of a young person or a child, or any other information that would identify the young person or child as either a young person or a child dealt with under the Act, or 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 (ss. 110(1) and 111(1) of the Youth Criminal Justice Act ). [ 1 ] The adolescent was tried on the following charges: 1.

On or about February 24, 2021, in Town A, District A, did commit assault against Y while using a weapon, thereby committing a

summary conviction offence under

section 267 (

a) of the Criminal Code . 2. On or about February 24, 2021, in Town A, District A, did commit assault against Z while using a weapon, thereby committing a

summary conviction offence under

section 267 (

a) of the Criminal Code . 3. On or about February 24, 2021, in Town A, District A, did commit assault causing bodily harm against Y, thereby committing a

summary conviction offence under

section 267 (

b) of the Criminal Code . 4. On or about February 24, 2021, in Town A, District A, did commit assault causing bodily harm against Z, thereby committing a

summary conviction offence under

section 267 (

b) of the Criminal Code . 5. On or about February 24, 2021, in Town A, District A, did carry or possess a weapon for a purpose dangerous to the public peace, thereby committing a

summary conviction offence under section 88(2) (

b) of the Criminal Code . [ 2 ] The Crown’s case rests on the testimony of three witnesses, including two complainants. [ 3 ] The chain of possession of the photographs of the injuries and the medical reports of the complainants are admitted. [ 4 ] At the end of the trial, counsel for the adolescent acknowledged that the injuries inflicted on the two complainants constitute

bodily harm. [ 5 ] The question of the accused’s criminal participation remains a live issue. [ 6 ] The question can be worded as follows: Does the evidence establish beyond a reasonable doubt that the accused aided or abetted the principal offender within the meaning of s. 21(2) of the Criminal Code , thereby committing the offences charged? [ 7 ] The accused did not testify or present a defence. RELEVANT FACTS IN EVIDENCE: 1. VERSION OF WITNESS A: [ 8 ] The events happened on February 24, 2022, in a parking lot located near the “[Restaurant A]” restaurant. [ 9 ] The girlfriend of complainant Y (

Y) recounted that she went to get food at lunchtime with Y and Z (Z) [ 10 ] She testified that she saw two individuals arrive. The first, who goes by the name B, approached Z and hit him. She screamed, and her boyfriend Y went to help Z. [ 11 ] She pointed out that Y fought with B, while a second individual, identified as the accused, very briefly exchanged blows with Z. [ 12 ] Her focus was on B, the accused’s brother.

He was the one who initiated the fight. [ 13 ] She thinks the two aggressors came from the other side of the street. [ 14 ] She recounted that two strangers had to separate B and Y, whereas the accused and Z separated themselves and did not end up on the ground. [ 15 ] She noticed that the back of her boyfriend Y head was injured and bleeding. He later went to the hospital with his father. [ 16 ] She identified the accused in the courtroom, even though she had seen him only very briefly with his mask on.

She stated that he was a student at her school at the time of the events. [ 17 ] She considers that the attack was gratuitous. She later found out that a snowball fight had taken place that morning during which the accused was hit by a snowball. [ 18 ] She made the connection between that fight and the altercation.

[ 19 ] During cross-examination, she acknowledged that she talked about the incident with her boyfriend Y on several occasions: “ We putted the words together”. [ 20 ] She stated that every time she tells the story, she remembers more details. She admits that in her statement to the police officers in May 2022, she said that she had seen only one individual, but this was a mistake because there were two. 2. VERSION OF COMPLAINANT Y [ 21 ] The complainant Y confirmed that there was a snowball fight that morning at school.

He had heard that someone had been hit by a block of ice. [ 22 ] He went for lunch at “[Restaurant A]” around 1:15 p.m. and saw two individuals hit Z. [ 23 ] He did not see the altercation between the accused and his friend Z because he was busy fighting B, who had pulled his sweater over his head, which obscured his vision. [ 24 ] He did not notice anything visible about the accused. [ 25 ] He confirmed that he punched B in the face and pushed him to the ground.

He asked B what his problem was and B answered that someone had messed with his brother. [ 26 ] He described his injury and identified the corresponding photographs. He still has a scar today after receiving 10 stitches at the time. It was a significant cut. [ 27 ] He stated that he and B rolled on the ground for about 20 seconds.

He was on top and believes that this is when he was cut. [ 28 ] He identified B and the accused from photographs when he met with the police officers about a month after the incident. [ 29 ] He can identify the accused. [ 30 ] He remembers seeing B later on the day of the incident, when he went back to school. B apologized and asked him if he would be filing a complaint. [ 31 ] He also confirmed that he talked about the incident with his girlfriend A. 3.

VERSION OF COMPLAINANT Z: [ 32 ] He confirmed that on February 24, 2022, B and the accused arrived in the parking lot near the “[Restaurant A]” restaurant at around 1:15 p.m. [ 33 ] B took hold of him and pushed him against a vehicle. Then Z in turn punched B, and the fight was under way.

[ 34 ] When Y came to help him, he fought with the accused. He does not remember why he ended up with the accused. [ 35 ] He saw that his friend Y had his sweater over his head. He explained to the Court that Y and B had been separated. [ 36 ] He stated that he saw B holding a blue and orange exacto knife at the start. He said that B tried to jab him and he was cut. [ 37 ] He claimed that he saw the accused with the knife at the end. [ 38 ] He testified that B asked him if he wanted to fight one-on-one.

He answered that he was ready to fight again but changed his mind when he saw the knife. [ 39 ] He was cut twice, once in the back and once under his eye. He does not know when he was cut. The deeper cut, the one below his shoulder blade took one month to heal. He still has a scar today. [ 40 ] After the fight, he walked toward the school.

He stated that he later saw the accused, who came to apologize. [ 41 ] He knew that the accused attended his school and that he was not in the same grade. [ 42 ] Throughout the examination in chief, he maintained that he had no idea why he was attacked that day. [ 43 ] He did not refer to the snowball fight at school that day. [ 44 ] When he was confronted with his police statement, he admitted that he never said that he had seen the accused holding the knife that day. [ 45 ] In fact, he cannot explain how the knife could have gone from B’s hands to the accused’s hands. [ 46 ] He also acknowledged that B said, “Are you fucking with my younger brother” before grabbing him. [ 47 ] He understood at that point that B was referring to the infamous snowball fight during which the accused was hit by a block of ice.

ANALYSIS [ 48 ] The evidence presented by the Crown rests essentially on the testimony of these three witnesses [ 49 ] For the defence, counsel for the accused submitted that the evidence adduced does not ground a conclusion beyond a reasonable doubt that the accused knew that his brother had a knife in his possession and that he intended to use it. [ 50 ] The evidence reveals that the bodily harm was caused by a knife or blunt object.

[ 51 ] The participation of the accused is limited to a brief exchange of punches with complainant Z. [ 52 ] That is what the testimony of A and the complainant Y reveals. [ 53 ] Only complainant Z’s testimony about the accused’s participation is different. [ 54 ] He claims that he saw the accused holding the knife at the end of the fight. [ 55 ] That is not what he said in his police statement, however. [ 56 ] The reliability of complainant Z’s testimony was sorely tested by the defence. [ 57 ] He never referred to that morning’s snowball fight or to the connection he had made between that fight and the probable reason for the incident. [ 58 ] His testimony does not explain how the accused could have found himself in possession of the knife at the end of the fight when he claims to have seen B holding the weapon he describes. [ 59 ] He cannot explain how the weapon was transferred or the exact moment it may have happened when we know that B and the complainant Y. were on the ground. [ 60 ] Complainant Z’s testimony also surprises when he states that he was ready to fight B once more but changed his mind when he saw the knife again. [ 61 ] From the beginning, he knew that B had a knife because he had seen it and described it.

His testimony is hard to follow when he says that he nevertheless agreed to fight again. [ 62 ] Furthermore, he claims that he fought with B but found himself facing the accused after the complainant Y. got involved. He stated that he could not remember why he changed adversaries.

It is clear that there were side-by-side fights. [ 63 ] The fight between complainant Z. and the accused lasted only about 30 seconds, whereas the overall fight involving the complainant Y. and B lasted longer. [ 64 ] Everyone agrees that the principal offender behind the altercation is B. [ 65 ] The Crown submits that the accused should be convicted on all counts because of his participation and the fact that it was a common adventure. [ 66 ] The evidence of common adventure rests essentially on the inference that the accused had been hit by a block of ice that day, and this incited B to defend or avenge his brother. [ 67 ] There is no evidence establishing an agreement between the accused and his brother to settle accounts.

[ 68 ] Nor is there any evidence that would justify concluding that the accused knew that his brother B possessed a knife and intended to use it. [ 69 ] The testimony of complainant Z is not reliable due to vagueness and contradictions with respect to the accused’s involvement. [ 70 ] The end of his narrative, when he claimed that the accused approached him to apologize whereas the other witnesses said it was B who did so, is also unreliable. [ 71 ] Furthermore, it is clear that A, Y, and Z. have often discussed the facts of the case since giving their statements and that they have added details. [ 72 ] The testimony given at the hearing appears less reliable than their police statements, and their collective memory raises many questions. [ 73 ] Based on the Crown’s evidence, the Court has a reasonable doubt as to the nature of the common adventure and the accused’s knowledge that B had a weapon that he could or that he wanted to use. [1] [ 74 ] The Court also has a reasonable doubt as to the accused’s possession of the weapon for a dangerous purpose, because knowledge and control were not proved beyond a reasonable doubt. [ 75 ] However, under section 21(2) Criminal Code , the evidence does establish that the accused committed simple assault by participating in the altercation initiated by B. [ 76 ] The Court cannot convict the accused of assault causing bodily harm because the injuries were caused by the knife used by B, not by the brief exchange of punches between the accused and the complainant A.

FOR THESE REASONS, THE COURT: [ 77 ] CONVICTS the accused of simple assault on counts 3 and 4 under s. 266 (

b) of the Criminal Code ; [2] [ 78 ] ACQUITS the accused of counts 1, 2, and 5. ___________________________ SOPHIE GRAVEL, J.C.Q. Mtre Aubrée Coutanson, Counsel for the DCPP of Town A.

Mtre Diego Murias, Counsel for the defence. Date of hearing: May 5, 2022