



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Brouillard, 2016 ONCA 342

DATE: 20160506

DOCKET: C59883 & C60164

Blair, Tulloch and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jesse
    Brouillard

Steven Taing

Appellants

James Foord, for the appellant, Jesse Brouillard

Michael Davies, for the appellant, Steven Taing

Scott Latimer, for the respondent

Heard: March 29, 2016

On appeal from the conviction entered on July 3, 2014 and
    the sentence imposed on October 16, 2014 by Justice Célynne S. Dorval of the Ontario
    Court of Justice, sitting without a jury.

Pardu J.A.:

[1]

The appellants, Jesse Brouillard and Steven Taing, were both convicted
    of aggravated assault of a customer, Ikechukwu Ukwu who had been ejected from
    the bar where they were managers. Each appeals from their conviction for
    different reasons, and also seeks leave to appeal sentence.

[2]

Mr. Brouillard argues that the verdict identifying him as an assailant
    was unreasonable, because the video evidence was of such poor quality that it
    was insufficient to identify him as the second assailant, and that the trial
    judge misapprehended that evidence, in any event.

[3]

Mr. Taing argues that while he indisputably threw the first punch that
    knocked Mr. Ukwu to the ground, Mr. Ukwu got back up after that punch, and
    appeared unresponsive only after the second punch was thrown by another person.
    It was at that point that Mr. Ukwu fell and hit his head on the curb or ground,
    and became unresponsive. Given the sequential nature of the blows, Mr. Taing
    submits that it was unreasonable to attribute responsibility to him for Mr.
    Ukwus serious head injury, and unreasonable to conclude that he and the other
    assailant were acting in concert. He submits that the trial judge erred by not
    engaging in any causation analysis connecting the blow he struck with Mr. Ukwus
    injuries.

[4]

For the reasons that follow, I would dismiss the appeals.

(1)

The findings of the trial judge

[5]

The trouble began inside the bar where Mr. Brouillard and Mr. Taing were
    both managers. There was some kind of altercation, following which three males,
    Mr. Ukwu among them, and two females were ejected from the bar. A video of the
    inside of the bar showed Mr. Brouillard actively involved in this melee. At
    the end of this scuffle, Shawn Mahmoud, the manager of another bar, had Mr. Ukwu
    in a full nelson hold and was removing him from the bar. Mr. Brouillard and Mr.
    Taing followed them outside.

[6]

It appears from the bars surveillance video of the street that Mr. Mahmoud
    spoke to Mr. Brouillard just before releasing Mr. Ukwu. Almost immediately, Mr. Taing
    punched Mr. Ukwu, who fell to the ground. As Mr. Ukwu got back up, Mr. Brouillard
    quickly circled around to the area where Mr. Ukwu had just risen to his feet.
    Just before Mr. Ukwu fell from the force of the second blow, Mr. Brouillard
    was admittedly identified as being close by, in a lunging position, with a
    cocked bare arm visible above the forward lunging leg. The contact of the
    second punch with Mr. Ukwu is not visible on the video, but Mr. Ukwu fell in a
    direction which would be consistent with a blow struck by Mr. Brouillard.

[7]

The trial judge found that only three people were close to Mr. Ukwu at the
    time of the second blow: Mr. Brouillard, Stefan Ilic, and Rodrigo Brand. No
    challenge is made on appeal to this finding. The trial judge excluded Mr. Brand
    as the second assailant because Mr. Brand was wearing a jacket and tie, and therefore
    his arms were not visible, in contrast to the arms of the second assailant,
    which she found were visible in the video immediately before and after the
    blow. The trial judge also found from the video, as well as from a second City
    of Ottawa street camera recording, that Mr. Ilic moved towards Mr. Ukwu after
    the second blow, and that he came from behind Mr. Ukwu, opposite to the
    direction in which Mr. Ukwu was sent flying by the punch. She therefore
    excluded him as the second assailant as well. She concluded that the person who
    delivered the second punch was Mr. Brouillard.

[8]

Finally, on the basis of the sequence of events in which Mr. Taing and Mr. Brouillard
    assaulted Mr. Ukwu, the trial judge concluded that they acted in concert to
    exact retribution on Mr. Ukwu for the trouble he had caused in the bar.

(2)

Was Brouillards conviction reasonable?

[9]

Mr. Brouillard submits that the video evidence was of insufficient
    quality to enable the trial judge to exclude Mr. Ilic as the second assailant,
    and to conclude that it was Mr. Brouillard.

[10]

However, as pointed out by Rosenberg J.A. in
R. v. Abdi
, 2011
    ONCA 446, at para. 6:

Whether the video recordings were of sufficient quality was a
    question of fact for the trier of fact, here the trial judge.  This
    courts jurisdiction to review that finding is limited.  The leading case
    on the issue is the decision of the Supreme Court of Canada in
R. v.
    Nikolovski
, [1996] 3 S.C.R. 1197, where Cory J., speaking for the majority
    of the court, said the following at para. 23:

If an appellate court, upon a review of the tape, is
    satisfied that it is of sufficient clarity and quality that it would be
    reasonable for the trier of fact to identify the accused as the person in the
    tape beyond any reasonable doubt then that decision should not be disturbed.
    Similarly, a judge sitting alone can identify the accused as the person
    depicted in the videotape.

[11]

Here, there is no dispute that the appellants were accurately identified
    in the videos and that their paths of travel could be traced. The issue here is
    whether a finding that Mr. Brouillard threw the second punch can safely be made
    from the videos.

[12]

I have reviewed the video evidence and conclude that the trial judges findings
    were reasonable in light of all the evidence before her. She had the benefit of
    software that slowed down the sequence of events, and enabled her to view them
    very slowly. She had recognition evidence from police officers who knew the
    appellants. Their paths of travel were highlighted with coloured circles, and
    their whereabouts in the crowd outside the bar were not in dispute. She also had
    the benefit of two different videos of the street, one recovered from the bars
    surveillance camera and another City of Ottawa recording. Mr. Brouillard was
    admittedly in a lunge position close to Mr. Ukwu immediately before the second
    blow, and the direction Mr. Ukwus body flew was consistent with a blow struck
    by Mr. Brouillard, while it was inconsistent with one struck from Mr. Ilics
    position. Moreover, Mr. Ilic moved towards Mr. Ukwu after the second blow.

[13]

For these reasons, I am not persuaded that there was a misapprehension
    of the evidence, nor do I see any basis on which to interfere with the trial
    judges finding that Mr. Brouillard threw the second punch.

(3)

Did the trial judge err by finding that the appellants were acting in
    concert and by failing to deal with causation?

[14]

Given the animus evidenced by the physical confrontation inside the bar,
    the ejection of Mr. Ukwu, and the fact that Mr. Brouillard and Mr. Taing followed
    Mr. Mahmoud and Mr. Ukwu outside for no evident purpose and then each punched Mr.
    Ukwu within seconds of each other, it was open to the trial judge to conclude
    that the appellants were acting in concert. She was therefore not required to analyse
    which blow caused the injury. The trial judge correctly relied on
R. v.
    McMaster
, [1996] 1 S.C.R. 740, in which the Supreme Court of Canada
    stated, at para. 33:

It is a well-established principle that where a trier of fact
    is satisfied that multiple accused acted in concert, there is no requirement
    that the trier of fact decide which accused actually struck the fatal blow.

[15]

Taing told police in his interview of managements intention to discourage
    undesirable customers. This supports the trial judges finding that both bar
    managers were acting in concert. The fact that blows are struck sequentially,
    rather than concurrently, does not exclude a finding that two parties acted in
    concert.

[16]

For example, in
R. v. Biniaris
, 2000 SCC 15,
[2000]
    1 S.C.R. 381,

Biniaris and another teenager
    attacked a victim causing fatal head injuries. According to the medical
    evidence at trial, Biniaris did not participate in the attack until after the
    fatal injuries had already been inflicted. In its closing submissions to the
    jury, the Crown advanced a three-part theory of liability for second degree
    murder: liability as a principal, liability as a co-perpetrator, or liability
    as an aider or abettor. The jury convicted Biniaris of second degree murder.
    The B.C. Court of Appeal substituted a conviction for manslaughter on the basis
    that the jurys verdict was unreasonable, but the Supreme Court of Canada
    restored the jurys conviction. The court noted, at paras. 45-49, that in light
    of Biniariss liability as a party, the fact that
the blows
    inflicted by him were not the immediate cause of the mans death was of no
    significance
.

[17]

Another example is
R. v. P. (L.)
(2003), 172 C.C.C. (3d) 195
    (Ont. C.A.). In that case, L.P. punched the victim in the head area several
    times. The victim fell to the ground, and R.B. then kicked him hard in the
    head. L.P. and R.B. were both convicted of aggravated assault, and this court
    dismissed their appeals. The court noted, at paras. 17-18:

Counsel also submitted that the trial judge erred in finding
    that R.B. and L.P. acted jointly in committing the assault, making it
    unnecessary for the purposes of liability to determine whether the punch or the
    kick caused the injury. Counsel rely on the acquittal of K.H. [a third accused]
    and the gap in time between the punches and the kick in support of this
    submission.

It was open to the trial judge to find that the appellants
    acted together as joint perpetrators of the assault. They went after [the
    victim] together and confronted him together. In the course of the same series
    of events which occurred in a short time span both appellants assaulted [the
    victim]. We cannot agree that the brief interval between the punches and the
    kick rendered the conclusion that the appellants acted together unreasonable.
    To the contrary, we think the attempt to portray the two assaults as discrete
    and unconnected events is a strained and unrealistic interpretation of the
    events.

[18]

In my view, the trial judge did not err in finding that the appellants
    were acting in concert, and she was not obligated to determine whether Mr.
    Taings punch was the direct cause of Mr. Ukwus injuries.

(4)

Was the sentence unfit?

[19]

The appellants submit that the three-year sentence given to Mr. Taing,
    and the three-and-a-half-year sentence given to Mr. Brouillard, were outside
    the range and excessive, given that this was a one-punch case for each of them.
    They also argue that the trial judge made inconsistent findings by first stating
    in her reasons for conviction that the assault occurred spontaneously as Mr. Ukwu
    was ejected from the bar, while later indicating in her reasons for sentence that
    although the assaults were not premeditated, they also were not spontaneous.
    Finally, the appellants argue that having found that there was insufficient
    evidence to conclude that the appellants themselves reformatted the bars video
    surveillance recording in an attempt to destroy evidence, the trial judge erred
    in using the appellants failure to ensure the recording was not tampered with
    by others as an aggravating factor on sentencing.

[20]

I reject these arguments.

[21]

Mr. Ukwu suffered devastating injuries as a result of the assault. In a
    letter submitted to the court, Mr. Ukwus treating physician observed:

Mr. Ukwu has marked impairments at a time point almost 2 years
    post injury. He will continue to have lifelong deficits as a result of his
    injuries secondary to the assault in June 2012. He will always need support to
    live in the community. He will never be competitively employable and he will
    not be able to reach the potential that his university education would have
    afforded him.

[22]

At the time of the assault, Mr. Ukwu was not acting in an aggressive
    manner. He was defenceless at the moment of each punch. The fact that each
    appellant punched him only once does not lessen the severity of what they did. There
    is no basis to conclude that the sentences were manifestly unfit. (
R. v.
    Lacasse
, [2015] 3 SCR 1089)

[23]

The trial judge also did not err in her treatment of spontaneity. She
    first stated in her reasons for judgment, at para. 29:

In this case, section 21(2) does not apply as there is no
    evidence that the two assailants formed a common intention to carry out an
    assault on Mr. Ukwu. The assault occurred spontaneously as Mr. Ukwu was ejected
    from the bar.

[24]

Later, in her reasons for sentence, she stated, at para. 23:

The assaults were not premeditated for any lengthy period of
    time, but neither are they spontaneous. Mr. Taing had to approach Mr. Ukwu
    to strike him. Mr. Brouillard had to follow the movements of Mr. Mahmoud
    and had time to consider his own actions when he saw the victim fall to the
    ground after being struck by Mr. Taing. His blow is not spontaneous; he winds
    up and strikes Mr. Ukwu as soon as he is standing.

[25]

The trial judge used spontaneous in two different contexts. In the
    first, she was referring to the fact that the appellants did not form a plan inside
    the bar to commit the assault. In the second, she was referring to the degree
    of coordination between the appellants when they acted jointly to commit the
    assault on Mr. Ukwu outside the bar.

[26]

Finally, even if the trial judge erred in treating as an aggravating
    factor the failure of the appellants to prevent other misguided individuals
    from attempting to destroy evidence, the sentences imposed were nonetheless
    fit.

(5)

Disposition

[27]

Accordingly, I would dismiss the appeals from conviction, grant leave to
    appeal from the sentence, but dismiss the sentence appeals.

Released: (RAB) May 6, 2016

G. Pardu J.A.

I agree R.A. Blair J.A.

I agree M. Tulloch J.A.


