R. v. Winter, 2011 ONCJ 795

COURT FILE No.: Region of Durham 998 10 16374 Citation: R. v. Winter , 2011 ONCJ 795 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — Colin Winter Before Justice J. De Filippis Heard on 12-13 October & 24 November 2011 Reasons for Judgment on 21 December 2011 Ms S. James................................................................................................................ for the Crown Mr. C.

Dacrouz...................................................................................................... for the Defendant De Filippis, J.: [ 1 ] Colin Winter was tried on an Information containing three counts; (1) assault on Scott Luxon, (2) assault causing bodily harm on Nolan Lederman, and (3) mischief to a window, the property of Bobby C’s Restaurant and Bar. All charges arise from an incident on 31 October 2010 at the Municipality of Clarington. I heard from six witnesses. I have concluded that the defendant is not guilty of the first count and guilty of the remaining two counts.

These are my reasons. [ 2 ] The following facts are not in dispute: Bobby C’s Restaurant and Bar is located in south Bowmanville. The rear door opens to an area used by smokers and slopes down to a marina. On the day in question, it hosted a private Halloween party that was attended by numerous people. The party goers wore costumes, as did the bartenders. The security staff did not wear costumes; instead they were dressed in black pants and black T-shirt. The defendant and his girlfriend, Ms Lenay Vanboxter, attended the party dressed in life guard costumes.

Scott Luxon, one of the complainants, was a bartender and wore a ninja turtle costume. Nolan Lederman, the other complainant, was one of the security personnel and was dressed in black. The defendant had a physical confrontation with the two complainants and several others. In addition, he smashed the rear glass door, valued at $250.00. [ 3 ] Nolan Lederman testified that late in the evening, he observed the defendant in an intoxicated state. He told him he could finish the beer he had in hand but was then “cut off”. The defendant agreed and said “thank you”.

Several minutes later, the complainant saw the defendant with another beer and told him this must be the last one. Again, the defendant agreed. The complainant testified that about 20-30 minutes later he saw the defendant with yet another beer in his hand. He decided to “confiscate” that beer and evict the defendant. [ 4 ] According to Mr. Lederman, the following occurred: He approached the defendant and told him to put his drink down and leave the bar. The defendant refused. The complainant snatched the beer bottle by its neck and handed it to the bartender.

He told the defendant to leave “or we’ll help you find the door”. The defendant demanded his beer be returned to him. When the complainant refused, the defendant grabbed him and both fell to the floor. In the process, the complainant’s shirt was ripped and the defendant landed on top of him. The defendant pushed his thumb into the Mr. Lederman’s right eye for “5-10 seconds” with “extreme force”, making him feel like he had “razor blades in the eye” and causing him to “scream in pain”. Mr. Lederman denied that he was on top of the defendant and that the latter put his hand into his face in self defence. [ 5 ] Mr.

Lederman testified that while on the floor a woman pulled his boot off as she tried to drag him away from the defendant. The complainant and defendant both stood up. The complainant and two other staff members grabbed hold of the defendant and took him outside. While doing so, the defendant tried to bite the complainant and succeeded in punching him in the head. [ 6 ] According to Mr. Lederman, the defendant tried to re-enter the premises by the rear door. That door was locked and monitored by another staff member, Ms Angela Fice.

It was her job to ensure that party goers who went outside for a smoke did not bring alcohol with them. She let people in and out of the establishment. The defendant’s girlfriend was inside talking to Ms Fice while the defendant was outside “charging” at the door and demanding to be let in. Between charges, Ms Fice told the defendant to stop and he replied, “fuck you, open the door”. The glass door shattered and as the defendant stepped inside he was grabbed by Mr. Luxon. The two men fell and rolled down a slight hill, followed by Mr. Lederman. According to the latter, the defendant was choking Mr.

Luxon until he and others intervened.

[ 7 ] After these events, the owner of Bobby C’s Restaurant and Bar called the police and the party was shut down. Before the police arrived, the defendant returned and accused the staff of stealing his “fanny pack”. The owner allowed him to enter the bar and search for it. The defendant did so and left without finding the item. Mr. Lederman next saw the defendant fighting with four men he knew to be soldiers from a nearby military base. The group fell into a ditch near the road.

The complainant saw the four soldiers emerge from the ditch; one had his nose “bent on the other side of his face”, another had obvious bite marks on him, and the other two had blood on them. As they left the area, the complainant heard one of the men say “he’s crazy”. He then saw the defendant emerge, bloody and without his shirt, pounding on his chest, while shouting “who wants more”. The police arrived and arrested the defendant after “taking him to the ground”. [ 8 ] The complainant testified that his eye was “very painful” and this increased over the night.

He was taken to a hospital where his eye injury was treated by “freezing the cornea to dull the pain” and he was referred to a specialist for a “torn cornea”. He stated he experienced headaches and temporary loss of vision as a result of the injury and that both symptoms continue to this day. [ 9 ] Steve Akil was also part of the Events Team that provided security for the party. He saw the defendant arrive at the party and described him as sober and “normal”. Later, he came into the main room and saw the defendant and Mr. Lederman on the ground. He believes the defendant was on top. Mr.

Akil and the owner of the bar put the defendant “in a bear hug” and took him outside through the front door. He said the defendant would not “calm down” and shouted and cursed as he tried to break free in an apparent attempt to charge at Mr. Lederman. According to Mr. Akil, once outside, the defendant immediately tried to re-enter the bar through the front door but was prevented from doing so. Within minutes, he tried to do so again, with the same result. Later, Mr. Akil saw that the glass door at the rear of the bar had been smashed. [ 10 ] Angela Fice worked with Mr. Lederman and Mr.

Akil as one of the security staff on the night in question. She testified as follows: She was stationed at the rear door of the bar but also regularly checked all washrooms. During one such patrol, she saw Mr. Lederman speaking to the defendant about his consumption of alcohol. She described him as “drunk and rude and loud”. Later, while on duty at the back door, Ms Fice saw a woman, now known to be Ms Vanboxton, trying to let the defendant re-enter the Bar. When Ms Fice prevented this that woman “took two swings” at her but missed both times. She described Ms Vanboxter as “drunk and rude”.

Meanwhile, the defendant “banged” on the glass door “hard with his fist” and shouted “You’re fucking assholes….no right to kick me out”. As Ms Fice attempted to restrain Ms Vanboxter from hitting her, the defendant “came through” the glass door. She let go of Ms Vanboxter and the latter punched her in the head. Almost immediately, she saw the defendant and Mr. Luxon struggle and go outside, followed by Mr.

Lederman. [ 11 ] Ms Fice confirmed that, after these events, the defendant was allowed to re-enter the bar to search for his missing “fanny pack” and that he was subsequently involved in an altercation with several men in a ditch near the road. She saw that one of those men had a broken nose and another with a bite mark on his face. The defendant emerged from the ditch “pounding his chest” and shouting “anymore?” She later accompanied Mr. Lederman to the hospital where she wrote out a statement for police. At Mr.

Lederman’s request she took down his statement for the police as he had difficulty seeing out of one eye. [ 12 ] Cst. Greene arrived on scene in response to a “fight call”. He was in a police uniform. After preliminary inquiries, he arrested the defendant and took him into custody. He testified the defendant was “clearly intoxicated and very agitated”. On being arrested the defendant “cocked his arm as if to punch” and had to be restrained. While being transported to the station he demanded to be released from the cruiser and threatened to harm the officer the next time they met. Cst.

Greene stated he did not take this threat seriously as the defendant was drunk. [ 13 ] Lenay Vanboxter is the defendant’s girlfriend. Like Mr. Akil, she did not see what precipitated the confrontation between the defendant and Mr. Lederman but saw them on the floor. She pulled at Mr. Lederman’s leg causing his shoe to be removed. Two other “bouncers” grabbed the defendant and pulled him up and escorted him out the front door. Ms Vanboxter testified she received a text message from the defendant reporting he had been “kicked out” and was at the rear of the bar. She went there but was prevented from going outside.

As she argued about this, she heard the glass door shatter. She saw a man in a ninja turtle costume charge at the defendant and both went outside. She followed and saw the defendant fighting with the “turtle guy” and several others near a ditch. [ 14 ] Ms Vanboxton admitted she was frustrated and was rude to the bouncers and punched the female bouncer in the face when the glass door shattered. Ms Vanboxton testified she had “quite a bit” to drink and described herself as “not overly drunk, but drunk”. She believes the defendant is the victim in this matter. [ 15 ] Corey Veloce is a friend of the defendant.

He witnessed a bouncer telling the defendant he could no longer stay in the bar. He said the bouncer acted professionally in doing so but that the defendant refused to leave. He added that the bouncer put his hand on the defendant and that after the latter “shrugged it off”, they “grabbed each other and fell to the ground”, with the bouncer landing on top of the defendant. He said the bouncer was sitting on the defendant’s stomach and that neither one threw a punch or kick at the other.

He noted that it was a chaotic scene and he cannot say how the fight ended or what happened while the parties were on the ground. However, he saw the bouncer stand up and rub his eye and heard him say he could not see out of it. Mr. Veloce testified that the injury to the eye was “obvious” and that the defendant was then forcibly removed from the bar. One hour later he saw the defendant at the back door to the bar while his girlfriend was inside arguing with another person. Mr. Veloce said the defendant was “angry” and banged on the glass door with his fist in a “hammer motion”.

The glass shattered and the “turtle guy” ran out and started fighting with the defendant. This fight continued near the dock area where the defendant held the “turtle guy” in a “backward choke” until others intervened to break it up. [ 16 ] Mr. Veloce noted that he had had eight to ten bottles of beer during the evening. He could not say how much the defendant consumed but described him as “drunk, but not overly drunk”. Mr. Veloce answered many questions by saying “I don’t recall”. [ 17 ] The Crown must prove its case beyond a reasonable doubt if the defendant is to be found guilty.

This means that if the defendant has called evidence, there must be an acquittal: (

i) where the testimony is believed, (ii) where the testimony is not believed, but leaves the trier of fact in reasonable doubt, (iii) where testimony is not believed and does not leave a reasonable doubt, but the remaining

evidence fails to convince, beyond reasonable doubt, that the defendant is guilty: R v W.D. (1991) (SCC), 63 C.C.C.(3d) 397 (S.C.C.). The application of this principle does not mean the defendant’s evidence is to be viewed in isolation, divorced fromthe context or other evidence in the case: F v R.D. [2004] O.J. 2086 (O.C.A). [18] I find that the two Defence witnesses were truthful but their testimony must be viewed with caution because they wereintoxicated. Ms Vanboxton candidly admitted to her consumption of alcohol, rudeness, and violent behaviour.

I accept the sincerity ofher belief that the defendant is the victim but she did not see how the fight with Lederman started or how the glass broke. Otherwise, hertestimony is largely consistent with that of the prosecution witnesses. Similarly, I find that Mr. Veloce attempted to be truthful. I findthat his many “I don’t know answers” reflect drunkenness, rather than evasiveness. Except for one issue to be discussed below, histestimony is consistent with that of the prosecution witnesses. In any event, the Defence evidence does not raise a reasonable doubt aboutthe Crown case.

That does not end the matter; the evidence of the Crown must be assessed to determine if it meets the criminal lawstandard of proof. [19] The defendant accepts the evidence of Mr. Akil and did not seriously challenge that of Cst. Greene. He submits,however, that Mr. Lederman exaggerated and that both he and Ms Fice are not credible. In making this submission, the Defence pointsto inconsistencies in the testimony of Crown witnesses and offers alternate explanations for what occurred. I reject this argument.

I amnot troubled by the minor inconsistencies brought to my attention and cannot act upon the alternate explanations offered. [20] The only significant inconsistency in the evidence is between Mr. Lederman and Mr. Veloce; the former testified that thedefendant was on top when they fell to the floor and Mr. Veloce stated otherwise. This is important to the Defence because of thesuggestion that while the defendant was underneath Mr. Lederman he may have inadvertently jabbed him in the eye as

an act of selfdefence. I will have more to say about this suggestion. For the moment, I note that Mr. Veloce had consumed a significant amount ofalcohol and conceded he did not see all events in what he described as a chaotic scene. He saw the injury to Mr. Lederman’s eye but nothow it occurred. [21] I am confident that the evidence of Mr. Lederman and Ms Fice is credible and reliable. I accept their version of events. Both were sober and employed to maintain security at a party.

The defendant, on the other hand, was highly intoxicated and increasinglyangry as he was initially told he could not have more alcohol and then evicted for continuing to drink beer. I am not troubled that MsFice was aware of Mr. Lederman’s version of events prior to her trial testimony. Although their evidence overlaps with respect to theevents preceding the shattered door, Ms Fice was not present for the confrontation between the defendant and Mr. Lederman and hasnothing to say about it. [22] The evidence of Mr. Lederman and Ms Fice was clear and not successfully challenged.

Moreover, it is confirmed inmaterial respects by other witnesses that are accepted or not challenged by the Defence: Mr. Akil and Cst. Greene observed the defendantto be drunk, obnoxious, and aggressive. That is the person who confronted Mr. Lederman. That is the person who pounded on the glassdoor. That the defendant was intoxicated is also supported by the Defence witnesses. In addition, Mr. Velcoe confirms that after thealtercation between the defendant and Mr.

Lederman, the latter had an eye injury and Ms Vanboxton supports the testimony of Ms Fice. . [23] The Defence offered alternate explanations for some of the events in dispute. It was submitted that the defendant couldhave jabbed his thumb into Mr. Lederman’s eye as he tried to push him off his stomach. The Defence admits the defendant pounded onthe glass door but that there was no intent to smash it and that he was merely trying to draw attention to the fact his girlfriend was beingrestrained by a bouncer.

Finally, it was suggested that the glass could have been defective and easily broken without the intent to do so. There is no direct evidence of these suggestions and it would be wrong to infer any of them, in the circumstances of this case. [24] The violent events of the evening in question are not unconnected; the altercation with Mr. Lederman, the shattered glass,the confrontation with Mr. Luxon, and the fight with the men in the ditch are all linked by the participation of the defendant – a manwho had become out of control. The question is whether his state of mind and actions amount to criminal conduct.

With respect to twoof the counts, the answer is yes. I find that the defendant refused to stop drinking, resisted being removed from the bar, and in

an act ofrage jabbed the Mr. Lederman in the eye when they both fell to the floor. I accept that Mr. Lederman acted properly and with restraintand that the attack upon him was not in self defence or otherwise justified. I am satisfied that the defendant is criminally responsible forthe smashing the window as he pounded on the door while demanding to be re-admitted to the bar. [25] The defendant submits that there is no evidence of bodily harm to Lederman. In this regard, I note that I refused to admita medical report tendered by the Crown for failure to comply with the Canada Evidence Act.

I agree with the Defence that the fact thatMr. Lederman was told he was treated for torn cornea does not mean he had that condition. However, I have no doubt that his injurieswere more than trifling and constitute bodily harm. As a result of being jabbed in the eye by the defendant, the complainant experiencedsevere pain that increased over the night and he continues to suffer from headaches and temporary vision loss. [26] The Defence argued that there is insufficient evidence to prove the confrontation between the defendant and Mr. Luxon(the “turtle guy”) was more than a consent fight.

The Crown countered that Mr. Luxon, as bartender, acted reasonably in dealing with atrespasser and that the defendant is guilty of assault for resisting. I agree with the Defence. On the record before me, that altercation isnot clear and I am not prepared to find, beyond a reasonable doubt, that the defendant is guilty assaulting Mr. Luxon. [27] The defendant is found guilty of assault causing bodily harm to Nolan Lederman and mischief in smashing a glass door atBobby C’s Restaurant and Bar. He is found not guilty of assault on Scott Luxon.

Released: 21 December 2011 Signed: “Justice J. De Filippis”