Her Majesty the Queen - v. -, 2014 SKPC 80

IN THE PROVINCIAL COURT OF SASKATCHEWAN YOUTH JUSTICE COURT Citation: 2014 SKPC 080 Date: April 16, 2014 Information: 44333608 Location: Saskatoon ____________________________________________________________________________ Between: Her Majesty the Queen - and - A.T. Appearing: Mr. G. Parker For the Crown Ms. N. Sim, Q.C.

For the Defence Note: Sections 110 and 111 of the Youth Criminal Justice Act contain prohibitions against publication of a name or other information that would identify someone as either a young person being dealt with under the Act , or as a child or young person who is a victim or a witness in relation to an offence alleged under the Act . _____________________________________________________________________________ JUDGMENT B.G. MORGAN , J _____________________________________________________________________________

Introduction [ 1 ] A.T. is a young person who is charged with assault causing bodily harm on another young person, B.B., arising out of events that occurred at a teen dance in Saskatoon on May 24, 2013. The defence relies on the self-defence provisions of s. 34 of the Criminal Code , as it was amended in March, 2013. [ 2 ] This case therefore requires firstly a close examination of what occurred in order to resolve some of the conflicts in the evidence, the critical examination centering on what happened immediately prior to the punch that constitutes the alleged assault.

The case secondly requires an examination of the applicability of the proffered defence. [ 3 ] All of the witnesses in this matter were male young persons and all will be referred to by initials. The Crown called four witnesses and the defence two. [ 4 ] Before reviewing the facts, it will be helpful to lay out the position of the Crown and defence in order to put things into perspective. [ 5 ] Ms. Sim suggests on behalf of A.T. that B.B. was in a “bellicose” mood, as he felt frustrated and threatened because he had been followed earlier in the evening.

She suggests the entire incident should be looked at against that background, as his attitude immediately prior to the blow puts things into context. She takes exception to the accuracy of the Crown version of what occurred, arguing that what A.T. did was reasonable in these circumstances, as he was threatened and pushed by B.B. She provided three cases, being R. v. Pankiw , 2013 SKPC 205 , R. v. Atkinson , 2013 MBQB 264 , and R. v. Piapot , 2014 SKCA 9 . [ 6 ] Mr.

Parker’s position is that A.T. was the aggressor, that the offence is made out, and that even if B.B. slightly pushed or shoved A.T., (which he is arguing did not occur), that was a light push or shove made by B.B., thus the force used in response to that was totally excessive. The Evidence [ 7 ] There is no dispute that all of the individuals who testified were at an alcohol free teen dance held at the Saskatoon Arts and Convention Centre in downtown Saskatoon. These dances are designed for young people between the ages of 14 and 18.

I am satisfied that none of the witnesses had consumed any alcohol that evening, and that none of them were under the influence of any drugs. [ 8 ] The complainant, B.B., and his two friends, R.T. and S.L., had either gone there together or met up there. There was some discrepancy in their evidence as to whether or not two of them had gone to the Midtown Plaza, a shopping centre close to the location of the dance, to hang out for a bit ahead of time, but nothing turns on that.

The trial was held on March 4, 2014, approaching ten months after the events in question, and I do not find it surprising that there is some divergence on minor points. [ 9 ] The three friends were generally together throughout the evening and were consistent in their evidence on the main events. This was, of course, a dance, so one or more may have been away from the others at certain points, but none of that matters with respect to the central issue. All three testified that, near the end of the dance, S.L. was approached by the accused A.T. and some of his friends.

Prior to this evening, the complainant’s group, and the accused’s group, did not know each other; identification was made of A.T. some time later through Facebook. [ 10 ] B.B.’s evidence was that, as the lights were coming on, he and R.T. went to get their coats, and noticed their friend S.L. being, in B.B.’s words, “cornered” by A.T. and some others, specifically, by five to seven other young people, all within five feet of S.L. As he put it, he and R.T. went to “stick up” for their friend, as in B.B.’s words, he thought there might be an “altercation”.

One of these individuals, there is no dispute, was the accused A.T.

[ 11 ] R.T. referred to his friend S.L. as being somewhat wedged in between two walls, and that there were one or two people yelling at him, with another five or so surrounding him. His impression was that this group was all together, in effect, surrounding S.L. “so it wouldn’t look suspicious”. [ 12 ] S.L., the focus of this attention, testified that A.T. had walked up, with five males following him, and it was clear to me that his perception was that all of these people were together as a group, that is, A.T. leading the way, with the others tagging along.

He testified that A.T. asked him why he tripped his friend, to which S.L. replied that he didn’t, but if he had done so, it was by accident. [ 13 ] All three are generally consistent with what occurred next, that is that R.T. and B.B. came over, as B.B. had stated, and there is no question that B.B. stood between A.T. and S.L., perhaps slightly to the side. A verbal exchange ensued between A.T. and B.B., which I parse as follows, allowing for slight variations in precise words: B.B. to A.T.: What’s going on; leave my friend alone. A.T. to B.B.: It’s none of your fucking business.

B.B. to A.T.: I’m making it my fucking business. [ 14 ] There was one other Crown witness who bears mentioning at this point, as he has a different version of the lead-up to the blow, a version which I completely reject for the reasons that follow. V.S. testified that he saw B.B. and A.T. talking, that he then looked away briefly, and when he next looked back, saw B.B. on the floor, indicating that it looked like A.T. had just hit him.

When asked directly if he saw the punch, he stated “no I did not”, an answer which triggered a s. 9(2) Canada Evidence Act application by the Crown to cross-examine V.S. on a written statement he had given to the police at the time of the incident. It was promptly dragged out of V.S. that he in fact had told the police in that statement that he saw A.T. hit B.B., and reluctantly agreed at trial that in fact that is what occurred. [ 15 ] He then went on to testify as to all types of other things that I find to be implausible at best and lacking in reliability and credibility.

He stated that no one else was around A.T. and B.B., that he thought “they were just probably having a friendly conversation”, that he was watching them for approximately one-half an hour and then he saw the blow being struck by A.T. “out of the corner of my eye”. I accept as true that he saw A.T. strike B.B., a fact which is not in dispute. He presented as a witness who was, by the time of the trial, not interested in accurately relating what he had seen the night of the incident.

He stated that he was “not necessarily” fearful of repercussions from A.T. for testifying, but whatever his motives were, his obvious objective was to get off the witness stand and escape the court room. As one side note, I make no finding that A.T. has threatened V.S. or anyone else in anyway respecting their testimony; I simply mention it was a comment made by V.S., whom I find to be completely untruthful. As a second side note, there is other evidence respecting how many people were in the immediate area at the time of the blow, and I will deal with that evidence in time.

All I am saying at this point is that I do not accept anything V.S. had to say respecting his observations as to that. [ 16 ] The other consistent evidence from each of B.B. and his two friends was that at no time did B.B. push A.T., or initiate anything physical between them.

B.B. specifically stated that “I did not shove him”, although he did acknowledge that there were parts of what occurred that he did not remember, and he did “sort of” agree in cross-examination that it was “fair to say” that the reason he stated at trial that he did not push A.T. is because he is not the kind of person who would push people. However, I also note that B.B. clearly did not remember much of what occurred at the central moment other than “I remember a fist”, and “I remember sticking up for S.”, a fact I do not find surprising, as he was rendered briefly insentient by the blow.

R.T. was clear that B.B. did not push anyone, as was S.L. As S.L. put it, it did not look like B.B. “wanted to get into anything”. In short, both of B.B.’s companions were describing a completely unsuspecting B.B., although S.L candidly admitted that it was possible that B.B. may have done something that S.L. did not see. [ 17 ] As to the punch itself, A.T. struck B.B. once in the jaw/face area, and the evidence is overwhelming and in fact uncontradicted that this blow caused B.B. to fall to the floor, where he was completely senseless for at least a few moments.

B.B. testified that his lower jaw was broken, some of his teeth were pushed back, requiring surgery, that his lower jaw was wired shut for about six weeks, and that he could not eat solid food and was on a liquid diet for approximately three months. Clearly, he remembers the conversation, and not much else immediately after that. [ 18 ] R.T. described the blow as being “kind of a sucker punch”, which he expanded on by stating that “it came out of nowhere”, stating that “you didn’t see it coming”.

[19] Before I turn to the defence evidence, I did want to address one other aspect of the Crown case. B.B. had testified that, earlierthat evening, he and his friends had been followed by a number of people who were apparently concerned that B.B. may have earlierpunched a certain A.J., a female schoolmate of B.B. whom he does not get along with. R.T. had testified that he had pulled B.B. awayfrom a group because he thought B.B. might get into a fight with them, which in context seemed to be referring to this earlier incident.

However, I cannot conclude that A.T. was in any way involved with that group or that a whole lot turns on this incident. The most thatcan be said of it is that B.B. and perhaps his friends were feeling somewhat apprehensive by all this unwanted attention.

This incidentcould support the defence argument that B.B. was feeling pugnacious that evening, but I am satisfied that any earlier incidents did notplay a role in the facts that are germane to this charge. [20] Turning then to the defence evidence, A.T. testified that a friend of his who “always got picked on” came up to A.T. andadvised him that a male (who turned out to be S.L.) had tripped him. A.T. then went to confront this individual, and while he wasspeaking to him, two others approached (who are obviously B.B. and R.T.) and interjected.

A.T.’s evidence was that B.B. used twohands to push him on his chest, which prompted A.T. to deliver a single blow, stating that, based on the tone of voice of B.B., and thecircumstances, he felt threatened. He denied that there was a group there, and stated that the nearest other parties were approximately 20feet to his left. [21] He testified the blow was “pretty much as needed” and that “I wasn’t really looking towards fighting”. [22] In cross-examination, he initially denied swearing at S.L., which may well be true, but he admitted that he was aggressive,angry, and upset with S.L.

He stated that his intention was “just to speak to him”, referring to S.L., but he did agree with the Crown’ssuggestion that his intention was to “tune him up verbally”. He testified that he told B.B. it was “none of your fucking business”, andreiterated that he felt it was in fact none of B.B.’s business.

He testified he didn’t swing as hard as he could have, and that he deliveredwhat he described as “a light little pop”. [23] V.H., the individual A.T. referred to as being approximately 20 feet away, testified that at the time of the confrontationbetween A.T. and B.B., he noted that “a guy comes up to A. and pushes him” noting that the push “made him move back a foot and then[A.T.] punched him”. [24] In cross-examination, V.H. was quite vague on particulars, and appeared to suggest that perhaps the push he says he saw didnot cause A.T. to move backwards. [25] The central question, then, becomes whether or not B.B. in fact did anything of an aggressive nature, or if there was anythingin the circumstances that would cause A.T to feel threatened.

The Law [26] In R. v. Pankiw, supra, Judge Labach of this Court provides an excellent review of the applicable law respecting defence ofperson at paragraphs 36 through 38, which I adopt in its entirety. As well, I remind myself that I am to assess credibility by reference toR. v. McKenzie (1996), (SK CA), 141 Sask. R. 221 (C.A.). Further, A.T. is not required to prove anything. Rather,the Crown has to establish all the constituent elements of an assault causing bodily harm beyond a reasonable doubt. The Facts [27] I find that the facts are as set out in the Crown case.

Dealing with some important particulars, I find as a fact that the allegedpush by B.B. did not occur. I also find that B.B. did not express an aggressive attitude towards A.T. A.T. was accompanied by a numberof individuals when he approached S.L. I accept the evidence of B.B. and his companions on these points, and reject the defenceevidence, for a number of reasons.

[ 28 ] Starting with the three youth who were together during this incident, as indicated earlier, there are some minor discrepancies. However, on the main points, they are clear and consistent. All three were very fair in cross-examination, and all three presented as being three young persons minding their business at a community dance. None of them struck me as being in anyway aggressive and none of them did anything inappropriate. [ 29 ] Although it is possible that S.L. may have tripped someone earlier, that being the ostensible reason for the involvement of A.T., A.T. was looking for a confrontation.

Had it been otherwise, S.L.’s immediate comment that if he did so, it was by accident, should have ended the matter. The reason it did not was because A.T. wanted to escalate the situation. His friends were along to watch the show. There was simply no other reason, other than A.T.’s desire to confront S.L., who was alone, for A.T. to approach him with a number of friends in tow in the first place. [ 30 ] A.T. was clearly the aggressor throughout. I find that in fact there was no push from B.B. at all.

Rather, what occurred was that there was an initial aggressive attitude expressed by A.T. towards S.L. and that he approached S.L. specifically looking to pick a fight. B.B. did not make any aggressive moves whatsoever towards A.T. He is of slight build, is a non-aggressive individual by all appearances, and his involvement was solely that of sticking up for his friend. A.T. was very much the aggressor and he very much felt that B.B. was sticking his nose in where it wasn’t necessary. A.T. is clearly a strong young man and his protestations that he feared being attacked by B.B. are without merit.

A.T. “sucker punched” B.B. once in the face, with sufficient force to cause considerable injury to B.B. There is no question that bodily harm occurred as a result of the punch; A.T.’s comment that the punch was in the nature of a “light tap” is inaccurate. [ 31 ] I also reject A.T.’s evidence that B.B.’s tone of voice, or posture, caused A.T. to believe B.B. was about to hit him.

The comment that B.B. was making it his business was, I note, in response to a coarse comment by A.T.; it was not made as a comment that could have reasonably caused anyone to believe it was the prelude to the speaker getting ready to initiate a physical confrontation. B.B. was clearly trying only to assist a friend who was under threat. [ 32 ] A.T. tried to present himself on the witness stand as a responsible young man who acted reasonably in a perilous situation.

The facts belie that; he created a situation that was perilous to others. [ 33 ] His friend V.H. was somewhat snide and unhelpful on the witness stand. He was obviously concerned mostly with supporting his friend’s version of events and was not as observant of events as he would have the Court believe. [ 34 ] Section 34(1) does not afford a defence. Dealing with the first leg of that defence, I find that the required subjective belief of A.T. was not so held.

Dealing with the second leg, I find that the punch was not thrown for the purpose of defending anyone; rather, it was thrown for the purpose of imposing punishment on B.B. for becoming involved. Dealing with the third leg, even had I found that the first two considerations were met, which I have not found, in looking at the factors set out in 34(1)(c), the punch was well beyond what could be found reasonable in the circumstances.

Although some of these points have been made earlier, I repeat some of them as some are specifically dealt with in the non-exhaustive list of factors to be considered on this last point. [ 35 ] The factors are:

a) the nature of the force or threat: there was no force used by B.B., nor was there a threat. Even if one were to find otherwise, this was a very minor threat by a slightly built unassuming young man.

b) 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: as was pointed out a number of times in cross-examination, A.T. always had the option of simply stepping back. Although he is not necessarily required to do so in all circumstances, it was the obvious response to mere verbal sparring by the slightly built B.B.

c) the person’s role in the incident - there is no question that A.T. was the aggressor vis à vis S.L. and almost immediately thereafter, by extension, towards B.B.

d) whether any party of the incident used or threatened to use a weapon; - there is no suggestion of any use of any weapon by anybody.

e) the size, age, gender and physical capabilities of the parties to the incident; - A.T. is a young man who admits to, and is proud of, working out with weights. That of course is not a crime, but there is no doubt that A.T. is a strong young man with considerable prowess as a boxer. B.B., on the other hand, is a slightly built, self effacing young man who was playing the role of the peace maker. They are both about the same age.

f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force or nature of that force or threat; - as indicated earlier, the parties were strangers to each other, and there is no connection between any incidents that may have occurred earlier between B.B. and the young lady and this matter.

g) the nature and proportionality of the person’s response to the use or threat of force; - again, even if I were to have found that B.B. pushed or threatened A.T., which I specifically found not to be the case, A.T. did not deliver what he referred to as a “light little pop”. I am not concluding that the punch to the face was of great force solely based on the damage that it caused and injuries sustained, by B.B. Rather, the evidence is overwhelming that A.T. “sucker punched” B.B. with a blow of significant force.

h) whether the act committed was in response to a use or threat of force that the person knew was lawful; - this is not applicable. [ 36 ] For all of the above reasons, I am satisfied beyond a reasonable doubt that the Crown has established all the constituent elements of an assault causing bodily harm, and that the self-defence provisions of the Criminal Code do not provide a defence. The accused is guilty as charged. Dated at Saskatoon, Saskatchewan, this 16 th day of April, 2014. ______________________ B.G.Morgan, J