2011 QCCA 292, 2011 QCCA 292

Unofficial English Translation R. c. Tremblay 2011 QCCA 292 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC No.: 200-10-002378-094 (240-01-006267-082) DATE: FEBRUARY 11, 2011 CORAM: THE HONOURABLE LOUIS ROCHETTE, J.A. BENOÎT MORIN, J.A. JEAN BOUCHARD, J.A. HER MAJESTY THE QUEEN APPELLANT - Prosecutrix v.

SONY TREMBLAY RESPONDENT - Accused JUDGMENT [ 1 ] THE COURT ; - On the appeal from a judgment rendered on April 22, 2009, by the Court of Quebec, Criminal Division, District of Charlevoix (the Honourable Judge Jean-François Dionne), which acquitted the respondent of the offence of causing bodily harm but found him guilty of the lesser and included offence of common assault; [ 2 ] Having examined the file, heard the parties, and on the whole deliberated; [ 3 ] The unfortunate events took place on September 4, 2008, in La Malbaie, at the l'Océane bar. That evening, Mr. S.

T. [the victim] arrived in a taxi with a group of persons who had come to celebrate a birthday. He was intoxicated at the time and continued to drink alcohol. The respondent was sitting at the bar with friends, including Michel Tremblay and his girlfriend, Josianne Lavoie. The victim annoyed Ms. Lavoie by staring at her, and she complained about it to her friend. Michel Tremblay asked the persons who were with the victim to [TRANSLATION] “deal with him”. Eventually, the victim, or one of his female friends, asked the barmaid to call a taxi.

Everyone had realized that it was time for the victim to leave the premises. [ 4 ] The taxi arrived, but the victim remained in the bar. He taunted Michel Tremblay, telling him that he was not afraid of his big arms. About five minutes after the taxi arrived, the respondent got up and urged the victim to leave. Moving from words to action, he turned the victim towards the door and pushed him in that direction. The victim tripped and violently hit his head on the railing that ran along the stairs near the exit door. [ 5 ] The victim suffered lacerations to the forehead and left the premises in an ambulance.

According to the testimony of Michel Tremblay and Josianne Lavoie, there is a distance of twelve to fifteen feet between the spot where the victim was pushed and the railing. * * * [ 6 ] The trial judge did not note any material contradictions in the testimony but, rather, differences in the

interpretation of the events. The victim and three persons who were with him in the bar—Cédric Lechat, Vicky Fortin, and Frédéric Parent—testified for the Crown. Michel Tremblay and Josianne Lavoie testified for the defence. [ 7 ] The judge rejected the testimony of Cédric Lechat, who alleged that the respondent grabbed the victim [TRANSLATION] “by the seat of his pants, as they say, and threw him like a sack into the railing.” Here is what he said concerning the evidence adduced: [TRANSLATION] Mr. S.

T. is right to say he felt a push and then he fell or found himself against the wall, what I would call the iron wall, he was right. How was he thrown? I do not believe, or there is a reasonable doubt that he was thrown. So, in this case, we must absolutely rule out subjective foreseeability of injuries. I do not believe Sony Tremblay threw him like a sack of potatoes or how one grabs a bale, that this

individual was thrown into the railing.

A) Because firstly, the testimony is not in accordance therewith, secondly, because Mr. S. T. cannot help us in this regard and thirdly, because as the witnesses said, and as appears from exhibit P-1, the door is a little further than the bar because when we look at the photos, the bar must be in the back in the photos, the way they were taken. Thus, there is such a distance that he couldn’t throw him, despite his size.

Throwing a guy weighing 160, 170 pounds... throwing him head first into the railing there... it’s too much, too much, it’s too much. … So it is certain that he caught hold of him and turned him around against his will, that he did so without permission or authorization, and that he had no authority to do so. ... … Michel Tremblay says this: He steered him. And you know, the little movements, that’s why judges are higher, we see the little movements. He pointed, he was going that way, he pointed during his testimony. We don’t have the video but he pointed, he steered him towards the door.

So let’s take the expression, for what it’s worth. … … Thus, I am sure beyond any doubt, from the testimony of both the Crown and the defence, that Mr. Sony Tremblay applied some force to the person of S. T. [ 8 ] Concerning the issue at bar, the judge states the following: [TRANSLATION] Was there objective foreseeability? We say objective foreseeability, objective meaning from the viewpoint of a reasonable person, that he would cause harm. Let us consider this closely . I said earlier that I set aside Mr.

Lechat’s testimony, to the effect that he threw him, I told him: That’s subjective foreseeability, and I set it aside. Was there objective foreseeability? I heard Vicky Fortin who testified that the accused pushed the victim towards the door or towards the outside, after that he grabbed him and threw him outside. According to Frédéric Parent, he pushed him and after that he fell, he was pushed and fell. Michel Tremblay, he steered him. Josianne Lavoie, he caught hold of his forearms and she made a move like the one I’m showing you, foreward.

The accused was not heard, I cannot infer a… can a mere push, even of a drunken guy who was ten or twelve feet from a door with iron bars right next to it, is it objectively foreseeable that he could hit his head, run into them headfirst ? That is the issue before me, whether there was an assault. Some might say: [traduction] “Look, he's a drunk guy, he knew it, this is a drunk guy who is staggering, if you push him a little he could go seven, eight, ten, fifteen, twenty feet and then hit his head directly against the wall, it’s objectively foreseeable,” some might say that.

Others might say: [traduction] “Look here, when you’re that far, and it wasn’t that aggressive. He was frustrated, he was fed up, but he didn’t hit him before, okay. Is it objectively foreseeable or is there a doubt in that regard that it would be objectively foreseeable?” After analysis, I believe there is a doubt that it was objectively foreseeable because I’m sure he pushed him. Whether he pushed him a little too hard or not too hard, I’ll never know, I wasn’t there .

And from what each of the witnesses saw, we have good reason to say one or the other: steered, forearms, he pushed him, he fell, he pushed him pretty hard or I heard a big thud, I felt pushed and I hit it headfirst, okay. From there, all

interpretations are valid, but when there is a doubt, the benefit of the doubt must be given to the accused, so I give him the benefit of the doubt, I find him guilty of a lesser and included offence under

section 265 of the Criminal Code , which also provides that it can be a lesser and included offence because there is a reasonable doubt, pursuant to the judgment of DeSousa , Dewey , and Smithers, on the objective foreseeability of committing assault and causing bodily harm. [Emphasis added.] * * * [ 9 ] The Crown argues that the judge erred with respect to the concept of objective foreseeability of bodily harm.

At the hearing, the appellant likewise requested permission to argue what it called a new point of law: that the judge erred in [TRANSLATION] “not concretely analyzing the objective foreseeability of bodily harm”, considering the push given by the respondent and the victim’s advanced state of intoxication. [ 10 ] In short, the judge was wrong to consider whether it was objectively foreseeable that the victim could fall and injure himself the way he did.

He should have considered only whether the push objectively created a risk of bodily harm. * * * [ 11 ] The Crown can appeal from an acquittal on a ground that involves a question of law alone. [1] Did the trial judge err in law in his statement of the applicable standard, which may have led him to wrongfully acquit the respondent of the charge as laid? [ 12 ] Let's go back to

section 269 of the Criminal Code . In order to find a person guilty of unlawfully causing bodily harm, there must be a cause-and-effect relationship between the underlying offence committed and the injury caused. The Crown’s argument relates

to the mens rea of the offence under

section 269 Cr. C , to its mental element. The Crown must prove the mental element of the underlying offence, as well as the objective foreseeability of bodily harm. In R. v. DeSousa , a case in which a woman was seriously injured by shards of glass from a broken beer bottle thrown against a wall during a fight, the Supreme Court of Canada considered

section 269 Cr. C .: … the test is one of objective foresight of bodily harm for all underlying offences. The act must be both unlawful, as described above, and one that is likely to subject another person to danger of harm or injury . This bodily harm must be more than merely trivial or transitory in nature and will in most cases involve

an act of violence done deliberately to another person. … to maintain the correct focus it is preferable to inquire whether a reasonable person would inevitably realize that the underlying unlawful act would subject another person to the risk of bodily harm rather than getting sidetracked on a question regarding the classification of the offence . [2] [Emphasis added.] [ 13 ] Authors Côté-Harper, Rainville, and Turgeon describe the requisite mental element in criminal offences in their Traité de droit pénal canadien . [TRANSLATION] Subjective m ens rea , that is to say, that which requires proof that the accused was aware of the offence, or at least aware of the likelihood of certain consequences, remains the standard for most offences.

That is the traditional meaning of the concept of “ mens rea” . We note, however, that in a series of judgments the Supreme Court of Canada has developed the liability of the accused based on objective wrongdoing in cases of certain offences of consequence and offences of negligence, whereby wrongdoing flows from a significant deviation from the standard of care that a reasonable person would exercise in the same circumstances. In such situations, proof of the accused’s subjective state of mind would not be required, his behaviour being measured against an objective standard.

Consequently, the prosecution would not have to prove the accused’s subjective awareness to get a conviction. Still, the accused can exonerate him or herself by raising a reasonable doubt as to whether a reasonable person would have been aware of the risks associated with his or her conduct , or whether there was a significant deviation from the standard of care. [3] [Emphasis added.] [Citations omitted.] [ 14 ] The trial judge’s findings of fact cannot be questioned by the Crown.

It must therefore be taken as a fact that the respondent pushed the victim towards the door by applying [TRANSLATION] “some force” to him, but that he did not throw him; that the victim was intoxicated; and that there is a distance of ten to twelve feet between the spot where he was pushed and the door close to the [TRANSLATION] “metal bars” on which the victim injured himself. [ 15 ] Having said this, the new argument raised by the Crown is ambiguous. The concrete analysis of the circumstances that gave rise to the Crown’s request was properly conducted by the trial judge, as stated above, and is not reviewable.

The Crown argues that the judge should have found that, on the basis of the facts, a reasonable person would have inevitably realized that the respondent’s actions put the victim at risk of bodily harm. Moreover, that the judge would have erred by considering the risk of the victim hitting the metal railing rather than the broader risk of bodily harm. [ 16 ] In this respect, the argument is one of law, and the appellant has the right to raise it, though it cannot succeed. [ 17 ] The objective risk of bodily harm must be determined in concreto.

The circumstances of each case are relevant, even decisive. [4] The judge considered the risk of bodily harm associated with the presence of the railing located near the bar exit and he gave the respondent the benefit of reasonable doubt. His approach is adequate and unassailable.

There is no reason to believe that another risk factor was brought to the trial judge’s attention and that it was obscured in the application of the standard of objective foreseeability of bodily harm. [ 18 ] Admittedly, it is not the injuries suffered by the victim that must be objectively foreseeable but the risk of bodily harm, which must be more than merely trivial or transitory in nature, as stated by the Alberta Court of Appeal in R. v. Dewey . [5] It should be noted, however, that in that case the accused “pushed the complainant more forcefully than would cause a stumble”.

The trial judge did not come to the same finding of fact. [ 19 ] Finally, there are no weaknesses in the trial judge’s reasoning. FOR THESE REASONS : [ 20 ] DISMISSES the appeal. LOUIS ROCHETTE, J.A. BENOÎT MORIN, J.A. JEAN BOUCHARD, J.A. Mtre Sébastien Émond CRIMINAL AND PENAL PROSECUTING ATTORNEY For the appellant

Mr. Sony Tremblay (absent) Respondent Hearing date: January 26, 2011