J. PROVINCIAL COURT OF SASKATCHEWAN PRINCE ALBERT IN THE MATTER OF INFORMATION #40150972 HER MAJESTY THE QUEEN Ken Hinz T.B. Bekolay, P.C.J J. Morrall, CROWN PROSECUTORS, Prince Albert, SK. FOR THE CROWN. DEFENDANT PRESENT WITHOUT COUNSEL. 1. Ken Hinz stands charged that on or about the 11th day of May, A.D., 1999, at or near Prince Albert, Saskatchewan, did in committing an assault on Don Brown cause bodily harm to him contrary to Section 267(b) of the Criminal Code. 2. The Crown called the alleged victim, Don Brown, his son, Cory Brown, the 15-year-old mascot for the Raider Hockey Club, Timothy Sabo, another fan, Adam Balicki, and rink official, Mark Anderson. The accused testified on his own behalf and called his son-in-law, Richard Schmitt, as witness. 3. The facts as outlined by Don and Cory Brown on the one hand, and by Ken Hinz and Richard Schmitt, on the other are at variance in material ways. Don Brown states that he was standing on the walk-way at the rear of the seats cheering loudly. He never saw Hinz approach. Hinz hit him and they both fell to the concrete floor. Brown hit the wall behind him as they went down. Cory Hinz testified that he saw the accused coming. He thought he was going to go past them to the concession. Instead, he came at his dad knocking him down. Cory testified he grabbed Hinz and they fell to the concrete. Both Brown’s denied using the phrase “kill him, kill #57" in their cheering. 4. In contrast, Hinz testified that he got up from his seat, walked to the Browns to speak to them about the inappropriateness of their cheering “kill him, kill #57" when his son, who wore #57, was laid out on the ice after having been checked from behind. He said he had eye contact with Don Brown as he approached and that Brown came forward at him some eight feet with his arms up. He interpreted this as an invitation to fight. They grappled. Cory Brown jumped on his back and they all fell to the floor. This version was supported by his son-in-law, Richard Schmitt. 5. There were two disinterested witnesses to this event Tim Sabo and Adam Balicki. Neither of them were related to any party nor were either of them involved in the actual incident. The third unrelated witness, Mark Anderson, did not see the event. 6. During his testimony, Tim Sabo stated as follows: “I was approximately half-way up the stairs when saw this gentleman turn around and hop up from his chair and leap at the older person with the painted face and knock him to the ground and then they were sort of wrestling for bit and then the person who got knocked to the ground his son grabbed Mr. Hinz until the security guards came and then left.” Mr. Sabo admitted that some of his vision was obstructed by his mask but he was clear on the observation contained in the testimony have just quoted. 7. In examination-in-chief Adam Balicki testified as follows: “I was watching the play on the ice and there was hit on the ice, some people were screaming. saw heavier set individual and younger man jump over two sets of seats and [they] walked down the top landing. looked back at the ice for second and the next thing see was these people grappling with each other and they fell down.” 8. Later during cross-examination, Mr. Balicki stated that when he saw the accused and the older gentleman (Don Brown) grappling with each other, he stated that the other painted guy (Cory Brown) then grabbed the accused and then the other person (Richard Schmitt) grabbed that guy and then all four of them fell down. The actions of the accused described by both Tim Sabo and Adam Balicki are at variance with what the accused would have us accept. The accused would have us accept that he simply got out of his chair and walked up to the Browns to discuss their inappropriate cheering when in fact he leaped up and leaped over chairs on his way to the Browns. reject the accused’s evidence that is at variance with the evidence of the independent disinterested witnesses. 9. Therefore, conclude from this testimony, that the accused initially assaulted Don Brown and while they were grappling with each other, Cory Brown grabbed the accused and thereafter Richard Schmitt then grabbed Cory Brown. They all fell down on top of each other. It was the pile-up that caused the bodily harm to Don Brown. 10. Did the accused “cause” bodily harm to Mr. Don Brown? 11. Pursuant to Section 267(b) of the Criminal Code, person must cause bodily harm. 12. In R.v. Smithers, (1978), 1977 CanLII (SCC), 34 C.C.C. (2d) 427, on charge of manslaughter where it was alleged that the accused, Smithers, had kicked the victim in the stomach, Smithers’ counsel submitted that the Crown had failed to prove beyond reasonable doubt that kick of Smithers caused the death of the accused. Dickson, J., stated as follows: “In answer to this question it may shortly be said that there was very substantial body of evidence, both expert and lay, before the jury indicating that the kick was at least contributing cause of death outside the deminimus range, and that is all the Crown was required to establish.” 13. This reasoning was followed by the British Columbia Court of Appeal in case involving charge of causing death by criminal negligence in the operation of motor vehicle. The court held that the jury must conclude that the accused driving was “contributing” cause of an accident and not just “minimal” or “insignificant” cause. It need not be established that the accused driving was “substantial” cause of the accident. R.v. Pinske, (1988), 1988 CanLII 3118 (BC CA), 30 B.C.L.R. (2d) 114, affirmed [1989] B.C.L.R. 979. 14. It should also be noted that in the R.v. Cribbins, 1989, C.C.C. (3d) 67 decision, the Ontario Court of Appeal held that the deminimus test of causation did not violate Section of the Charter, either on the principles of fundamental justice, or of being too vague. 15. There are other decisions of various courts across the country that deal with analogous situations to the case at bar. 16. In R.v. Brooks, (1988), 1988 CanLII 3018 (BC CA), 41 C.C.C. (3d) 157, the accused became enraged at the way the victim was driving his motorhome and stopped his car in front of the motorhome on the painted median on the highway. After the victim stopped behind him the accused opened the victim’s door and pulled him out by the arm. Both were then immediately hit hard by third vehicle. The accused was convicted at trial of assault causing bodily harm. At trial the judge found: “The accused caught hold of the arm of the complainant and pulled him from the motorhome. It was immediately after that that the two of them were struck and am satisfied that that is sufficient approximate cause that this accused is guilty of the full offence charged ... that is assault causing bodily harm.” 17. On appeal, the British Columbia Court of Appeal found that the trial judge could properly find that the causation factor had been proved. 18. The decision of R.v Samuelson (1991), 1991 CanLII 6905 (NB QB), 120 N.B.R. (2d) 124, is also decision somewhat analogous to the case at bar. In this matter, the accused and five others encountered the victim on the street. One of the others punched the victim and the victim ran away. The accused caught the victim and punched him in the face. The victim fell to the street and remained motionless. Less than one minute later the victim was run over and killed by truck. 19. On the issue of causation, the trial judge stated the following: “If one separates for reasons of analysis only, the assault proper and the unfortunate car accident 45 seconds to one-minute later, one might argue that the assault itself might not fall within the confines of Section 267(2) in that being semi-conscious or unconscious might be transient state, to use one of the words used in Section 267(2). Even if what transpired prior to the motor vehicle accident was found to be only common assault, because of the transient nature of the injury, common assault is an unlawful act and on the facts of this particular case, punching bleeding man in the face in the middle of the street is an unlawful act and that any reasonable person would realize must subject another person to at least the risk of some harm resulting therefrom, albeit not serious harm.” 20. Later on, the judge states as follows: “Prior to the motor vehicle, we may have had, in this case, only common assault, but one that can, in the circumstances support charge of manslaughter for the reasons mentioned above. From causation stand-point, the assault and the motor vehicle accident are one and are so closely related in time and otherwise, that find that the assault caused the death of Robert Reid. The assault from that perspective certainly caused bodily harm in that it caused the death of Robert Reid”. 21. Further the judge stated as follows on the issue of causation: “The half-ton truck passed only 45 seconds to one minute after the assault. Reid was motionless in the middle of the street during that very short period of time. find that, applying the law as it stands to the facts as find them, the accused did cause the death of Robert Reid even though it is the truck that actually killed Mr. Reid. ... the Crown does not have to prove that the accused foresaw or intended the death or serious harm to the victim. The accused is responsible for all of the results of the assault which he committed, no matter how unforeseen or how unintentional.” 22. In reviewing the case law from other jurisdictions, it is very important to note that given the law as it presently stands in Saskatchewan, the Crown does not have an obligation to prove that the bodily harm caused by the assault was objectively foreseeable and that the assault would subject the victim to the risk of bodily harm. In R.v. Swenson, (1994), 1994 CanLII 4683 (SK CA), 91 C.C.C. (3d) 541, the Saskatchewan Court of Appeal reviewed case law from the Supreme Court of Canada and the Ontario Court of Appeal on this very issue. The Saskatchewan Court of Appeal expressly did not follow R.v. Nurse, (1993), 1993 CanLII 14691 (ON CA), 83 C.C.C. (3d) 546, the decision of the Ontario Court of Appeal which found that the Crown did have to prove objective foreseeability. The Saskatchewan Court of Appeal expressly stated that Nurse was incorrectly decided and that the courts in Saskatchewan prefer the approach of the British Columbia Court of Appeal in R.v. Brooks where the court held the elements of assault causing bodily harm consist of: (1) the mens rea to commit the assault, that is the intentional application of force to the person of the victim; (2) that such force resulted in bodily harm. 23. Therefore in the case at bar, two questions must be posed: (1) Would Mr. Brown have suffered bodily harm if the accused had not assaulted him? (2) Was the assault a contributing cause of the bodily harm, in that it was more than an insignificant or trivial cause of the bodily harm? 24. The answer to the first question is easily answered in the negative. It was clearly the accused who initiated the pile-up from which the bodily harm resulted. Without the initial assault, no pile-up would have resulted. 25. I conclude that the second question should be answered in the affirmative. While the bodily harm resulted directly from the effect of third parties falling on top of the accused and Mr. Brown, the third parties involvement was due entirely and as direct result of the actions of the accused. The accused placed the victim in a dangerous position, similar to the accused in the Samuelson and Brooks decisions. As well, similar to those decisions, very short period of time elapsed between the assault and the bodily harm. They are, to quote the Samuelson decision: “closely related in time and otherwise”. 26. Therefore, although I have some empathy for the accused reaction to the Brown’s cheering “kill him, kill #57" while his son was down on the ice, provocation not being a defence, I must find this accused guilty as charged. DATED this 21st day of January, A.D., 2000, at the City of Prince Albert, in the Province of Saskatchewan. T.B. Bekolay, Provincial Court Judge
The accused was charged with assault causing bodily harm contrary to s.267(b) of the Criminal Code. HELD: The accused was found guilty.  1)The case law from other jurisdictions was reviewed. Given the law as it presently stands in Saskatchewan the Crown does not have an obligation to prove that bodily harm caused by the assault was objectively foreseeable and that the assault would subject the victim to the risk of bodily harm. The Court of Appeal expressly stated that R. v. Nurse was incorrectly decided and prefers the approach in R. v. Brooks which held the elements of assault causing bodily harm consist of the mens rea to commit the assault and the intentional application of force which results in bodily harm. 2)The victim would not have suffered bodily harm if the accused had not assaulted him. The assault was more than an insignificant or trivial cause of the bodily harm. While the bodily harm resulted directly from third parties falling on top of the accused and the victim, the third parties involvement was due entirely and as a direct result of the actions of the accused. It was clearly the accused who initiated the pile up. The accused placed the victim in a dangerous position, similar to that in the Samuelson and Brooks decisions. A very short period of time elapsed between the assault and bodily harm.