R. v. Boydell, 2018 ONCJ 908

ONTARIO COURT OF JUSTICE CITATION: R. v. Boydell , 2018 ONCJ 908 DATE: 2018·12·21 COURT FILE No.: Toronto 4817 998 17-75001839 BETWEEN: HER MAJESTY THE QUEEN — AND — JOHN BOYDELL Before Justice Richard Blouin Heard on November 14 and November 15, 2018 Reasons for Judgment released on December 21, 2018 Ms. Sandra Duffey ................................................................................ counsel for the Crown Mr.

Anthony De Marco ........................................... counsel for the defendant John Boydell BLOUIN, J.: There is no god [ 1 ] Around noon on April 19, 2018, a man in his sixties walked past three teenage Muslim girls on the sidewalk of a busy downtown Toronto street. Because of four words spoken by the man to the girls an angry verbal interaction resulted, which was followed by physical violence. A construction worker across the street, alerted to the commotion, filmed approximately 80 seconds of the confrontation and showed it to the police when they arrived. As a result, Mr.

Boydell was arrested and charged with assault. The four words Mr. Boydell directed at the girls, two of whom were wearing hijabs, were “there is no god.” Witnesses [ 2 ] The Crown called Brandon Ouimet (the construction worker), Roua Nouren (the complainant), her friends Rahel Melese and Saide Ali, and a police officer. The defendant testified. Mr. Boydell agrees he spoke the first words because he was of the view, and still is, that he was entitled to express his views because the girls were expressing their views through the wearing of hijabs. To him, the hijab is a symbol of Islam, and Islam is homophobic.

As a gay man he was offended. [ 3 ] There is little question as to how the incident ended as that was captured by a cell phone camera. However, what occurred before that is very much in doubt. The version of events given by the three girls differ in some respects from one another, but generally, collectively, provide that the defendant started both the verbal confrontation, and the physical one. All agree, including Mr. Boydell, that the first words spoken were by the defendant. Ms. Nouren and Ms. Melese testified that the argument became physical when the defendant pushed Ms. Nouren. Mr.

Boydell denies that, and that denial was to some degree supported by the evidence of one of the three girls. Ms. Ali testified that the defendant first pulled off Nouren’s hijab and grabbed her hair. She said nothing about a push. [ 4 ] Mr. De Marco submitted that, as unusual and unfortunate as this confrontation played out, it was in essence a consensual fight. Mr. Boydell agrees he was angry after he was punched in the head by Ms. Nouren, and he responded by grabbing her hair and applying a headlock. He felt he was engaged in a fight. Interestingly, Ms. Ali referred to “two people fighting,” and Ms.

Nouren herself characterized the physical interaction, on many occasions throughout her evidence, as a fight. Ms. Nouren agrees she punched the defendant after she was pushed but did not remember where it landed. She also does not remember how many times she punched the

defendant. [ 5 ] Tellingly, in re-examination, she summed up the physical confrontation by saying: A. So while he was pulling my hair he was, like, swinging me around, basically. Like I was trying to throw punches because, by still going at me, it was like – I do not remember exactly what he was doing, it is just, it was like a two-way fight. He was putting his hands on me and I was putting my hands on him. Cell phone video [ 6 ] As indicated above, the video taken by Mr. Ouimet records the last 80 seconds of the confrontation.

The defendant’s voice was heard at the beginning of the recording yelling, “you fucking hit me.” Mr. Boydell was shown to have grabbed the complainant’s hair. He threw her to the ground. However, Ms. Nouren advanced towards him at one point. He was on the ground at another. It also shows Ms. Nouren stomping on and crushing the defendant’s glasses. In my view, the video corroborates that this was a fight with two parties engaging. Conclusion [ 7 ] I find that in assessing the totality of the evidence, I cannot conclude that Mr.

Boydell is not telling the truth when he says the fight started because of the punch delivered by Ms. Nouren. [ 8 ] In fact, given that Mr. Boydell admitted certain facts that portrayed himself in an unfavourable light, I find his evidence has raised a reasonable doubt. I have reservations regarding his credibility, especially around how he came to eject spit “accidentally” at these girls. I also suspect his reliability given that he initiated an argument which escalated into a physical confrontation within a very short, chaotic period of time.

His memory was understandably suspect on some of the details. [ 9 ] As a result, I find I cannot determine who first applied force to the other. As strange as it sounds, given the unusual combatants (an older man with no criminal record and retired from professional life, fighting on the street with a young girl), I conclude this sad affair to be a consensual fight. Nobody really expected to fight but that is what eventually happened. [ 10 ] There is no doubt this all happened because of Mr. Boydell’s pre-conceived notion that a Muslim girl wearing a hijab meant homophobia.

There is no doubt this escalated because of Ms. Nouren’s angry response to her perception of Islamophobia. Neither participant should be proud of their behaviour. However, in the final analysis, a reasonable doubt has been raised regarding the offence of assault, and the defendant must be acquitted. Released: December 21, 2018 Signed: “Justice Blouin”