R. v. Johnson

2016 BCSC 410 R. v. Johnson IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Johnson, 2016 BCSC 410 Date: 20160309 Docket: 26874 Registry: Vancouver Between: Regina Appellant And Randy Arnold Johnson Respondent Corrected judgment: The text of the judgment was corrected at paragraph 5 on March 15, 2016 Before: The Honourable Mr. Justice N. Brown On appeal from: A conviction by the Provincial Court of British Columbia, dated August 21, 2015 (R. v. Johnson, Vancouver Docket 17185-1) Reasons for Judgment Counsel for the (Appellant) Crown: D.E. Boblin Counsel for the Respondent: R. Lin V.Y. Guo Place and Date of Hearing: Vancouver, B.C. January 27, 2016 Place and Date of Judgment: Vancouver, B.C. March 9, 2016 Table of Contents OVERVIEW OF THE FACTS. 3 Respondent's testimony. 4 THE TRIAL JUDGE'S FINDINGS. 6 SUMMARY OF ISSUES. 7 PARTIES' POSITIONS. 7 QUESTIONS OF LAW RELATING TO ESSENTIAL ELEMENTS OF THE OFFENCE. 8 Subjective foreseeability. 9 IS OBJECTIVE FORESEEABILITY OF THE RISK OF BODILY HARM REQUIRED IN B.C. FOR THE OFFENCE OF ASSAULT CAUSING BODILY HARM?. 11 R. v. Blackwell 11 R. v. McConnell 12 R. v. Brooks. 13 Model Jury Instructions cautions. 13 CRIMJI Commentary. 14 What is objective mens rea?. 16 CONCLUSION ON THE FIRST ISSUE. 16 DID THE TRIAL JUDGE ERR IN HOLDING THAT PUNCHING THE FACE DOES NOT CARRY WITH IT AN OBJECTIVE RISK OF FORESEEABILITY OF BODILY HARM?. 18 Findings in other cases. 20 STANDARD OF REVIEW.. 21 APPROPRIATE REMEDY. 22 SUMMARY. 22 [1] The Crown is appealing the respondent's acquittal on the charge of assault causing bodily harm. The Provincial Court trial judge convicted him of the lesser included offence of assault. [2] The trial took place over two days: December 15, 2014 and May 5, 2015. [3] There is no question the respondent punched the victim in the face with a closed fist, in which he held a metal flashlight. The blow fractured the victim's jaw, required surgical reconstruction, and left permanent significant symptoms. [4] The trial judge acquitted the respondent of assault with a weapon because he was not satisfied beyond a reasonable doubt the respondent "knew and remembered and planned to have the flashlight in his hand for the purpose of enhancing his punch." [Para. 26.] [5] He also acquitted the respondent of assault causing bodily harm in part because he found "a punch to the face without having something in your hand or knowing that you have something in your hand, does not carry with it the same objective foreseeability of bodily harm." [Para. 32.] OVERVIEW OF THE FACTS [6] The victim of the respondent's assault, Mr. Gettle, had been drinking with his brother in some Gastown pubs. A woman approached them in the last pub they were at and invited them to come to her room in a Gastown single occupancy hotel for drinks. The respondent and his wife also lived there in an adjacent room. Not long after midnight, Mr. Gettle and the woman started to argue over Mr. Gettle's cell phone. He accused the woman of stealing it from him. The argument spilled out into the hallway, where Mr. Gettle pushed the woman against the wall. The hotel manager saw what was going on and went to the altercation. She said she told the women and Mr. Gettle she had called the police, they were coming, and that they were to go to the hotel front office and wait there. Mr. Gettle stayed behind while his brother and the woman went to the front of the hotel to wait for the police to arrive. [7] A security camera recording of everything that happened in the hallway was entered into evidence. It showed the respondent emerging from the room he and his wife occupied and punching Mr. Gettle in the face with his fist, clenching a flashlight within it. [8] The respondent and his wife knew the woman who occupied the adjacent room as "Michelle". [9] Mr. Gettle, though drunk, recalled someone coming out of an apartment. He paid no attention, more concerned about his cell phone. He said he felt a blunt and hard strike to his lower left jaw and wondered what it was. He saw someone moving away from him down the hallway, then saw his jaw was broken and he was bleeding. He then went to the hotel front desk where he waited for the ambulance and police to arrive. Respondent's testimony [10] The respondent and his wife testified on what led up to his emergence from his apartment. The trial judge accepted that both he and his wife recalled waking up just after midnight by somebody screaming for help. The respondent thought the sound was coming from the room occupied by Michelle. [11] The trial judge noted the respondent's testimony on the uses to which he thought he had put the flashlight before he emerged from his room and punched Mr. Gettle in the face with it in his hand. The trial judge noted that whether the respondent had used the flashlight to enable him to see in the dark so he could put on his pants, or just to put his shoes on before he came out to the hallway; either way, the respondent said he had forgotten he had the flashlight when he eventually did enter the hallway. [12] The trial judge estimated the length of the flashlight at four inches. [13] The trial judge concluded that about a minute and-a-half later, the video showed the respondent coming from the room fully dressed, and within a couple of seconds, smacked Mr. Gettle in the face "causing him bodily harm". The trial judge noted the recording showed the flashlight was being held in the same hand the respondent used to "punch" Mr. Gettle. [14] The trial judge noted the brightly lit hallway needed no flashlight for seeing things. Even so, he did not find that the circumstances warranted an inference the respondent held the flashlight as he did to "smack" Mr. Gettle. [15] The respondent testified he had forgotten he had had flashlight. He said that he had said to Mr. Gettle, "You like to beat up on women, do you? Well, get out of here." The respondent said Mr. Gettle told him to mind his own business. Then the respondent hit him. [16] When the respondent emerged from his room, the manager testified she saw no danger in sight. The video showed Mr. Gettle standing, swaying somewhat because he was drunk. Before the respondent struck Mr. Gettle, the manager, in the respondent's presence, had already announced that the police were on their way. [17] As a sidebar, I should explain the trial judge spent a fair portion of his reasons dealing with evidence relevant to s. 34 and s. 35 of the Criminal Code, R.S.C. 1985, c. C-46 [Code]. These sections respectively justify use of reasonable force to defend another person against an immediate threat or to remove a person from property reasonably believed to be in the lawful peaceable possession of the accused or of another person. [18] The trial judge found neither s. 34 nor 35 were applicable. At para. 25, he noted the respondent "[did] not see [Mr.] Gettle trying to force his way back into the room, he [knew] the police [were] coming, he [knew] the Manager was there, and [that] Michelle [was] out of the fracas at that point." This led the trial judge to his conclusion the respondent's "smashing" of Mr. Gettle in the face was "not a reasonable act". [19] Crown counsel had argued the respondent intended to have the flashlight in his hand when he inflicted a blow to Mr. Gettle's face and had it for that purpose. The trial judge found otherwise. THE TRIAL JUDGE'S FINDINGS [20] The following are the most pertinent statements and conclusions in the trial judge's decision: [26] I accept that I have some doubt whether he did remember or he did not remember that he had a flashlight in his hand. Certainly, the rationale that he gave as to the lights being out and needing to put on, either all his clothes or just his trousers, is something that reasonably could be true. There is some basis for him having the flashlight in the heat of the moment. I am not satisfied beyond a reasonable doubt that he knew and remembered and planned to have the flashlight in his hand for the purpose of enhancing his punch. [27] However, when he assaulted Gettle, there was no immediate fear and there was no crime being committed and, in terms of removing him from the premises, he was not the one to be doing any of that because there was nothing immediate in the circumstances to require that type of violence. [28] Gettle is not doing anything except standing there with his hands in his pocket, and he knows that the Manager had already gone to get the police. [29] What is the final result of all of this? He is charged in Count 2 with carrying, using, threatening to use a weapon to commit an assault on Mr. Gettle. I find that I do have some reasonable doubt whether he did actually recall carrying and using the weapon and I acquit him on Count 2. [30] Count 1, the assault, was the hit to the face and it resulted in bodily harm to Mr. Gettle. The Crown argues that once he commits the assault, if that assault causes serious bodily harm, he is guilty of the offence. [31] The Crown, very frankly, has said some of the case law in the provinces differ as to exactly what mens rea is required for an assault causing bodily harm. Crown argue that in B.C. the case law only has to show if he intentionally applies force, that force results in bodily harm, then he is convicted of assault causing bodily harm. [32] [Crown counsel] points out, also, that some other provinces add an objective foreseeability of harm and, where that comes in is, does somebody objectively or reasonably foresee harm to another person if they smash him in the cheek with their fist versus smashing him in the cheek with a weapon. There is no doubt in my mind that, objectively, if you put a flashlight made of steel in your fist and you hit somebody in the face with it, that objectively there is the foreseeability of serious bodily harm. On the other hand, a punch to the face without having something in your hand or knowing that you have something in your hand, does not carry with it, in my view, the same objective foreseeability of bodily harm. [33] In this particular case, in Count 1, he did commit an assault and I find that s. 35 does not extricate him from guilt in the situation. However, I do find that he did not have the mens rea because I have said I had doubt and have doubt in concluding that he knew he had that flashlight in his hand. He certainly assaulted him and that requires a general intent. He had the general intent to assault him. He is not extricated by s. 35. So he is guilty of the lesser offence of common assault, not guilty of the more serious offence of assault causing bodily harm. [Emphasis added.] SUMMARY OF ISSUES [21] The main questions are: 1. What is the law on the foreseeability of harm for the offence of assault causing bodily harm? 2. Did the trial judge err in law by incorporating subjective foreseeability into the elements of the offence of assault causing bodily harm? 3. Assuming that objective foreseeability of bodily harm by the accused's actions must be proven, did the trial judge err in his application of the law on the objective foreseeability of harm to the facts of this case? 4. If so, what should be the result, a new trial, or reversal of the acquittal and conviction for assault causing bodily harm? 5. Did the trial judge err in holding that punching the face does not carry with it an objective risk of foreseeability of bodily harm? 6. What is the correct standard of review? PARTIES' POSITIONS [22] The appellant submitted the trial judge's reasons reveal two errors in law: 1. The trial judge incorporated a requirement of subjective foreseeability into the offence of assault causing bodily harm. 2. The trial judge held punching a person in the face does not carry with it an objective risk of foreseeability of bodily harm. [23] The respondent submitted the trial judge based his acquittal on whether a reasonable person would have foreseen a risk of bodily harm in the circumstances comprising the facts that he had found. He further submitted the trial judge made a finding of fact that there was no objective foreseeability of harm from someone punching someone in the face without a weapon and that there was no contrary evidence such as medical evidence. [24] In further response to the appellant's second ground of appeal, the respondent submitted the trial judge's finding that there was no objective foreseeability of bodily harm is subject to a standard of review requiring palpable and overriding error, which, the respondent submits, cannot be shown. QUESTIONS OF LAW RELATING TO ESSENTIAL ELEMENTS OF THE OFFENCE [25] One of the questions the trial judge asked of himself was, "Does somebody objectively or reasonably foresee harm to another person if they smash him in the cheek with their fist versus smashing him in the cheek with a weapon?" The appellant submits that in context the statement showed the trial judge was concerned with whether the respondent had subjectively foreseen the risk of bodily harm to Mr. Gettle if he smashed his cheek with a fist without the flashlight in his hand. The appellant further submitted the presence in that passage of the words "objective" and "reasonably" does not mean the trial judge applied an objective foreseeability test. [26] The respondent submitted that considering the factual matrix and the reasons as a whole, the trial judge correctly applied an objective foreseeability test. I will deal with these submissions after a review of the law on whether either or both subjective and objective foreseeability of harm are essential elements of the offence of assault causing bodily harm. Subjective foreseeability [27] The answer to the question of subjective foreseeability is clear. Conviction of assault causing bodily harm does not require the judge to find that the respondent had foreseen a risk of harm to the complainant from their assault of the complainant: R. v. DeSousa, [1992] 2 S.C.R. 944 [DeSousa]. The answer to the question of objective foreseeability, at least in this province, is uncertain. [28] In DeSousa, the appellant had been involved in a fight in which a bottle the appellant allegedly threw broke against a wall. A glass fragment struck and injured a bystander. The appellant accused had made a successful pretrial motion for a declaration that s. 269 of the Code was of no force or effect because it was contrary to s. 7 of the Canadian Charter of Rights and Freedoms [Charter]. The appellant had argued the offence of unlawfully causing bodily harm was contrary to fundamental justice because it put an accused at risk without the requirement of a blameworthy state of mind. In addition, the appellant argued the provision allowed conviction in the face of an accused's lack of intent to cause the bodily harm. [DeSousa at para. 2.] [29] When reading DeSousa, it has to be kept in mind the court's question was the constitutionality of s. 269 of the Code, specifically, whether subjective or objective foreseeability was a required element for s. 269 to be constitutional. Section 269 states: 269. Everyone who unlawfully causes bodily harm to any person is guilty of a) an indictable offence and liable to imprisonment for a term not exceeding ten years; or b) an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months. [30] The court concluded that while subjective foreseeability was not required, objective foreseeability was required for the offence of unlawfully causing bodily harm, s. 269 of the Code. But as for assault causing bodily harm, s. 267(b) of the Code, the dicta of Sopinka J. indicates the offence of assault causing bodily does not require objective foreseeability of the risk of harm. His dicta also mentioned other offences that specify the nature of the harm the accused's unlawful actions had caused. I will address this particular aspect of DeSousa later in these reasons, when considering the state of the law in this province. [31] Giving judgment for the court, Sopinka J. concluded at 962: [29] The mental element of s. 269 has two separate aspects. The first aspect of the mental element is the requirement that an underlying offence with a constitutionally sufficient mental element has been committed. Additionally, s. 269 requires that the prosecution prove that the bodily harm caused by the underlying unlawful act was objectively foreseeable. This latter requirement insures that all prosecutions under s 269 contain at least a fault requirement based on an objective standard. [Emphasis in original.] [32] In R. v. Dewey, 1999 ABCA 5 [Dewey], writing for the court, Picard J.A. stated at para. 6: [6] Prior to the Supreme Court of Canada's decision in R. v. DeSousa, [1992] [2] S.C.R. 944, the predominant view in the courts of Canada was that a conviction for assault causing bodily harm required only an actus reus and mens rea for assault along with consequence of bodily harm. In DeSousa, the Supreme Court of Canada unanimously held that objective foreseeability of the risk of bodily harm is constitutionally required for a conviction for s. 269 - the offence of unlawfully causing bodily harm. Justice Sopinka specifically rejected the argument that subjective foreseeability is required, stating that there is no constitutional requirement that subjective fault attach to each and every one of the elements of the offence. [33] Objective foreseeability refers to foreseeability of the risk of bodily harm in general, not of a specific harm, Dewey at para. 10. In this same vein, Sopinka J. in DeSousa noted at 967, "One is not morally innocent simply because a particular consequence of an unlawful act was foreseen by that actor." [34] In R. v. Creighton, [1993] 3 S.C.R. 3 [Creighton], McLachlin J. speaking for the majority, concluded that an unlawful act of manslaughter requires an element of "objective foreseeability of the risk of bodily harm which is neither trivial nor transitory," (at 44). At 54, McLachlin J. further noted that "notwithstanding the same level of moral fault, some offences may be more or less serious, depending on the consequences of the culpable act," adding, "Thus it cannot be said that the law in all circumstances insists on absolute symmetry between the mens rea and the consequences of the offence." [35] At 966-967 of DeSousa, Sopinka J.'s dicta proposes that objective foreseeability is not an essential ingredient of assault causing bodily harm: [35] In many offences, such as assault or dangerous driving, the offence is made out regardless of the consequences of the act but the consequences can be used to aggravate liability for the offence. For example, both assault and assault causing bodily harm have identical mens rea requirements and the element of causing bodily harm is merely used to classify the offence. No principle of fundamental justice prevents parliament from treating crimes with certain consequences as more serious than crimes which lack those consequences. [36] A number of Criminal Code offences call for a more serious charge if certain consequences follow. To require intention in relation to each and every consequence would bring a large number of offences into question including manslaughter (s. 222(5)), criminal negligence causing bodily harm (s. 221), criminal negligence causing death (s. 220), dangerous operation causing bodily harm (s. 249(3)), dangerous operation causing death (s. 249(4)), impaired driving causing bodily harm (s. 255(2)), impaired driving causing death (s. 255(3)), assault causing bodily harm (s. 267(1)(b)) As noted by Professor Colvin, "[i]t would, however, be an error to suppose that actus reus and mens rea always match in this neat way." [Citation omitted.] [38] One is not morally innocent simply because a particular consequence of an unlawful act was unforeseen by that actor. In punishing for unforeseen consequences the law is not punishing the morally innocent but those to cause injury through avoidable unlawful action. Neither basic principles of criminal law, nor the dictates of fundamental justice require, by necessity, intention in relation to the consequences of an otherwise blameworthy act. [Emphasis added.] IS OBJECTIVE FORESEEABILITY OF THE RISK OF BODILY HARM REQUIRED IN B.C. FOR THE OFFENCE OF ASSAULT CAUSING BODILY HARM? R. v. Blackwell [36] In R. v. Blackwell, 2007 BCSC 1240 [Blackwell], Smith J., following Dewey, stated at para. 109: [109] The actus reus for assault causing bodily harm consists of an act, which constitutes an assault, and a consequence of the act, which causes the victim bodily harm. It is an offence of general intent, that is to say the mental element does not extend beyond the act and its consequence. The mens rea requires objective foreseeability of the risk of bodily harm in general or proof that an accused was reckless as to whether his act caused harm to the victim. It does not require objective foreseeability of the risk of the specific harm that actually occurred. [Emphasis added.] R. v. McConnell [37] In R. v. McConnell, 2014 BCSC 973 [McConnell] at para. 8, Romilly J. distilled the mens rea applicable to aggravated assault: [8] [A]ggravated assault is transformed from simple assault by three additional elements: the assault wounded, maimed or endangered life; the appellant's conduct caused the wounding, maiming or endangerment; and a reasonable person would have realized the appellant's conduct would subject the victim to the risk of bodily harm: R. v. Godin, [1994] 2 S.C.R. 484, 89 C.C.C. (3d) 574; R. v. Brodie (1995), 60 B.C.A.C. 153. [38] Binnie J. summarized the mental elements of aggravated assault at para. 22 of R. v. Williams, 2003 SCC 41: [22] The mens rea for aggravated assault is the mens rea for assault (intent to apply force intentionally or recklessly or being wilfully blind to the fact that the victim does not consent) plus objective foresight of the risk of bodily harm: R. v. Godin, [1994] 2 S.C.R.484, at p. 485. [39] At para. 10 of McConnell, Romilly J. commented that because "the offence of aggravated assault consists of wounding, maiming, disfiguring or endangering life, there must be a breaking of the skin. This has the effect that bodily harm is always an included offence of an aggravated assault: R. v. MacPhee (1978), 45 C.C.C. (2d) 89 (N.S.S.C.A.D.)", cited with approval in R. v. Horsefall, [1990] B.C.J. No. 2397 (C.A.) at 249, leave to appeal ref'd, [1991] S.C.C.A. No. 8. [40] I note that in R. v. Sweeney, 2003 MBCA 46 at para. 8, the Manitoba Court of Appeal similarly held that "because bodily harm [was] necessarily included in three of the four ways an aggravated assault can be committed: wounding, maiming, or disfiguring", "assault causing bodily harm and simple assault are both included offences [if the indictment charged is] a general, unparticularized [one]. Further, the indictment cannot include 'aggravated assault endangering life.' R. v. Brooks [41] Neither Blackwell nor McConnell are authoritative in this province on the question of whether objective foreseeability is required in cases of assault causing bodily harm. The still leading appellate authority in B.C. on the essential elements of assault causing bodily harm is R. v. Brooks (1988), 41 C.C.C. (3d) 157 (B.C.C.A.) [Brooks], which has not been overturned. At para. 12 of Brooks, the court, having looked to R. v. Martell, [1977] B.C.J. No. 881 (C.A.), concluded foreseeability of harm was not required for conviction. The court first quoted this (first para.) from the appellant's factum: 8. It is respectfully submitted that in a case of this type, the learned trial judge should consider the elements of risk, intention, and foreseeability of the consequences of one's actions. Such a question as whether a person who confronts someone in a median would expect that they would be hit by a vehicle, would properly be considered. Whether the accused intended an assault and could reasonably foresee the results of an assault, having not intended bodily harm, should be properly considered. I believe the submission is that the judge erred in law by not considering these matters. But the argument, in my opinion, is not sustainable in view of the decision of this Court in R. v. Martel . That was the appeal of a conviction for assault causing bodily harm. The appellant contended at trial that the assault causing bodily harm could only be established if he, the accused, could be expected to have foreseen the result of his assault. He contended that reasonable foreseeability that harm will occur as a result of an assault is a necessary element of the offence of assault causing bodily harm. Chief Justice Farris, in reasons concurred in by Bull and Branca JJ.A. said at p. 4: Now, here there is no question that the appellant committed the assault, had the intention to commit the assault and that it caused bodily harm. In my view, all the elements of the offence are thereby made out. Model Jury Instructions cautions [42] Model Jury Instructions produced by the Canadian Judicial Council and the Canadian Criminal Jury Instructions ("CRIMJI"), 4th ed. (Vancouver: Continuing Legal Education Society of British Columbia, 2014), both recommend that judges in British Columbia instructing a jury on assault causing bodily harm not include instructions requiring the jury to find objective foreseeability of the bodily harm. CRIMJI Commentary [43] The following commentary in the CRIMJI at 6.08 - 58 cautions that Brooks may remain good authority in this province and suggests the safest route to follow is Sopinka J.'s dicta in DeSousa: In R. v. Brooks the Court followed R. v. Martell and held that the mens rea for assault causing bodily harm was simply the intent to assault, and there was no additional mens rea requirement of either intending bodily harm or of objective foreseeability of bodily harm. It could be argued that McLachlan J., for the majority of the Supreme Court in Creighton, approved of that holding in Brooks, since she cited with approval a closely related passage from Brooks and did not adversely comment on the above holding in Brooks. [44] The learned CRIMJI editors made the following comments regarding Sopinka J.'s two dictas in DeSousa, "that objective foresight of bodily harm [was] a necessary mens rea ingredient [for] the [s. 269] offence of unlawfully causing bodily harm"; and that "objective foresight of bodily harm [was] not a necessary mens rea ingredient [for the s. 267(b) offence] of assault causing bodily harm": Logically one might expect that if objective foresight of bodily harm [s. 269] is a necessary mens reas ingredient of unlawfully causing bodily harm, then it ought also to be a necessary mens rea ingredient of assault causing bodily harm under s. 267(b). [6.08 - 58; 59.] [45] The editors then query whether Sopinka J.'s dicta in DeSousa is correct in light of Creighton, which held that objective foreseeability of harm was an essential ingredient of the offence of manslaughter, and in light of Godin, which held objective foresight of bodily harm is a required mens rea of s. 268, aggravated assault. It is worth noting, as did the editors of CRIMJI, that the wording of s. 268 includes as an element of the offence the specific bodily harm the accused's actions caused, in other words, their consequences [at 6.08 - 59]. [46] As for s. 267(b), while the assault's consequence of bodily harm has to be proven, as Sopinka J. noted, the complainant's bodily harm formed the basis on which the assault becomes classified as a more serious offence than common assault. It is also noteworthy that s. 269 addresses bodily harm caused by any act unlawful as a federal or provincial offence, thus encompassing any objectively dangerous unlawful act, not just assault, that is likely to subject another person to danger. [47] Further in this vein, the core of Sopinka J.'s dicta in DeSousa that objective foreseeability of harm is not a required mens rea for the offence of assault causing bodily harm (and some other similar offences) finds clearest voice in his statement at para. 33, "provided that the actor is already engaged in a culpable activity, foresight of consequences is not required in order to hold that actor responsible for the results of his or her unlawful activity." I note that for assault causing bodily harm, the culpable activity is the assault, whose actus reus carries with it a specific mens rea related to the actor's intentions; and that the causing of non-trivial bodily harm only indexes the assault as a more serious class of offence. [48] Further in this vein, the editors of CRIMJI point out at 6.08 - 59 that in Creighton, McLachlin J. may have approved of the B.C. Court of Appeal holding in Brooks because she cited a closely related passage from it without negative comment on Brooks' rejection of an objective mens rea of foreseeability of harm for assault causing bodily harm. [49] It was this foregoing uncertainty that the foregoing led the CRIMJI editors to recommend the safest route was to follow the dicta in DeSousa; and that until the Court of Appeal decides the question, to instruct a jury objective foresight of harm is not an essential ingredient of s. 267(b) in B.C. [50] Lastly, I note in passing that if assault causing bodily harm is an included offence of aggravated assault, as noted earlier, the finding in Godin that objective foreseeability of risk of the injuries is a required element of aggravated assault gives rise to the question of whether, logically, the same must be found for assault causing bodily harm. What is objective mens rea? [51] Considering the forgoing, I conclude the safest instruction is that objective foreseeability of bodily harm is not required for conviction of assault causing bodily harm. The appellant's formal position is that it is not a required element. Considering the uncertainty, however, and to give the respondent the benefit of that doubt, the appellant was content to have the court assume that objective foreseeability of the risk of harm is required for conviction of assault causing bodily harm. [52] Assuming objective foreseeability of non-trivial bodily harm is required, helpful are the distinctions drawn between an objective mens rea and a subjective mens rea by McLaughlin J. at paras. 110 - 111 of Creighton: [110] Subjective mens rea requires that the accused have intended the consequences of his or her acts, or that knowing of the probable consequence of those acts, the accused have proceeded recklessly in the face of the risk. [111] Objective mens rea, on the other hand, is not concerned with what the accused intended to do or knew. Rather, the mental fault lies in failure to direct the mind to risk which the reasonable person would have appreciated. Objective mens rea is not concerned with what was actually in the accused's mind, but with what should have been there, had the accused proceeded reasonably. CONCLUSION ON THE FIRST ISSUE [53] Assuming an objective standard of foreseeability applies, I agree with the appellant that notwithstanding the presence of the words 'objectively' and 'reasonably' in the reasons, the trial judge implicitly applied a subjective test of foreseeability, at best, a modified objective test; i.e. whether the respondent foresaw harm to Mr. Gettle, were he to smash him in the cheek with his fist, versus smashing him in the cheek with a weapon, in this case, the flashlight in his punching hand. [54] The trial judge asked, "Does somebody objectively or reasonably foresee harm to another person if they smash him in the cheek with their fist, versus smashing him in the cheek with a weapon?", which, given the trial judge's finding of a reasonable doubt on whether the respondent knew he had the flashlight in his hand when he struck the complainant, reflects the trial judge's concern with whether the respondent had foreseen the risk of bodily harm to Mr. Gettle if he smashed him in the face. [55] But as McLachlin J. explained above, "the mental fault lies in failure to direct the mind to a risk which the reasonable person would have appreciated. Objective mens rea is not concerned with what was actually in the accused's mind, but with what should have been there, had the accused proceeded reasonably." [56] The trial judge also stated at para. 32: [32] There is no doubt in my mind that, objectively, if you put a flashlight made of steel in your fist and you hit somebody in the face with it, that objectively there is the foreseeability of serious bodily harm. On the other hand, a punch to the face without having something in your hand or knowing that you have something in your hand, does not carry with it, in my view, the same objective foreseeability of bodily harm. [57] The trial judge also stated at para. 33 that the respondent "did not have the mens rea because [he had] doubt in concluding that he knew he had that flashlight in his hand." [58] It my respectful opinion, it did not matter what the respondent intended or knew about the flashlight in this case, except with respect to the assault with a weapon count. Objective foreseeability of harm is not concerned with what the accused intended to do or knew at the time. Rather, as McLachlin J. stated, an analysis of objective risk is what should have been in the accused's mind, had the accused proceeded reasonably, the mental fault lying in the failure to direct the mind to risk of bodily harm, in this case from a punch to the complainant's face, which the reasonable person would have appreciated. [59] I find the trial judge erred in law in applying what was effectively a subjective test for the foreseeability of harm. Alternatively, he failed to apply, or to the extent that he applied it, did so incorrectly, the mens rea for objective foreseeability of the risk of harm. [60] In coming to this conclusion, I was mindful the trial judge was giving oral reasons from the bench in a busy court and is not expected to deliver crafted sentences, extensive analysis of the law, etc. But, I am not persuaded by the respondent's submissions in support of his contention that the trial judge based his acquittal on a mens rea of objective foreseeability of bodily harm rather than on a subjective one. [61] As noted earlier, considering, in tandem, Brooks and Sopinka J.'s dicta in DeSousa, until the Court of Appeal determines otherwise, objective foreseeability of a risk of harm is not required for conviction of assault causing bodily harm in this province. On that basis, alone, the respondent's acquittal of assault causing bodily harm would be reversible. However, assuming a requirement of objective foreseeability of bodily harm, the respondent was still wrongly acquitted. [62] The answer to questions 1 and 2 of the issues is yes, the trial judge did err in incorporating subjective foreseeability into the elements of the offence of assault causing bodily harm; and the answer to question 3 is even that assuming objective foreseeability of bodily harm by the accused's actions is required, the trial judge erred in his application of the law. DID THE TRIAL JUDGE ERR IN HOLDING THAT PUNCHING THE FACE DOES NOT CARRY WITH IT AN OBJECTIVE RISK OF FORESEEABILITY OF BODILY HARM? [63] The appellant also succeeds on this fifth issue. [64] The respondent submitted, on one hand that the question of whether punching someone in the face without a weapon carries with it an objective foreseeability of harm that without medical evidence is an abstract exercise; and, on the other hand, that the trial judge saw the video recording of the assault and so was in a position to determine the nature of the punch and the risk of harm. [65] The reasons say nothing about the trial judge's specific observations in that regard, but his characterization of the application of force as "a whack", "a smash" and a "punch", is noteworthy. The focus of the reasons regarding the application of force and the foreseeability of harm seemed to be centred on a comparison of the level of risk from a punch with a fist that had a flashlight rolled up in the hand, versus a bare fist. [66] The trial judge stated at para. 33 [Crown counsel points out also], that some other provinces add an objective foreseeability of harm and, where that comes in is, does somebody objectively or reasonably foresee harm to another person if they smash him in the cheek with their fist versus smashing him in the cheek with a weapon? [67] There is no doubt in my mind that, objectively, if you put a flashlight made of steel in your fist and you hit somebody in the face with it, that objectively there is the foreseeability of serious bodily harm. On the other hand, a punch to the face without having something in your hand, or knowing that you have something in your hand, does not carry with it, in my view, the same objective foreseeability of bodily harm. [68] The issue was not whether punching the complainant's face with a four-inch metal flashlight clenched inside a fist created a greater risk of bodily harm than a bare fist without the flashlight clenched inside the fist. The trial judge's comparison of degrees of risk did not address the question of whether a clenched fist punched in the complainant's face objectively posed a risk of bodily harm to him (assuming objective foreseeability is a necessary element of the offence). [69] The trial judge found a reasonable doubt on whether the respondent knew he had a flashlight inside his clenched fist, (which he did) when he punched the complainant and acquitted him of assault with a weapon. That acquittal is not in issue on this appeal. [70] The known presence of a flashlight might objectively increase the foreseeability of the risk of bodily harm, but it does not conversely diminish the objective foreseeability of the risk of bodily harm from a punch to the face with a closed fist. [71] The respondent submitted that there was no evidence, medical evidence, for example, that countered the trial judge's conclusion. Again, the difficulty is that the trial judge's reasons do not directly address the objective foreseeability of the risk of bodily harm from punching or smashing someone in the face with a closed fist, irrespective of any flashlight. [72] The words the trial judge used to describe the punch bespeak the risk of bodily harm. Findings in other cases [73] I reject the respondent's submission that medical or other evidence would be necessary to assail the trial judge's findings related to the objective foreseeability of risk of bodily harm posed by an adult male's closed-fisted punch to the face of another adult male. [74] The trial judge did not actually state a punch to the face does not objectively pose a risk of bodily harm. Therefore, there is no strict finding of fact on this question, and due deference is not warranted: Winskowski v. Coldstream (District), [1997] B.C.J. No. 2767 (C.A.) at para. 7. [75] Numerous judges have stated that the risk of bodily harm is objectively foreseeable whenever a person closes their fist and administers a forceful blow to a person's head or face. In R. v. S.K., 2009 ONCJ 452 at para. 133, Kastner J. distilled the essence of the judicial conclusions made reached other cases: [133] The reasonable person reasonably expects that closed fists can hurt someone, especially if applied to the head; in particular, the temple area. Fists are "not insignificant weapons, and fist fights often end in serious injury or death" [R. v. Carriere (1987), 56 C.R. (3d) 257 (Alta. C.A.)]. [76] Although this case is not precedential, there is no reason to disagree with its common sense statement. This was not a consensual fight, with blows being exchanged that then exceeded legal bonds. The complainant was just standing there, swaying, hands in his pocket. Naturally the risk of harm would vary depending on the sex, age, stature, health, physical condition, and previous medical condition of the complainant, but it is not subjective foreknowledge of all such details, or objective foreseeability of a particular consequence of the assault that is the test, rather foreseeability of the risk of non-trivial bodily harm posed by a punch with a closed fist to a person's face and head. This becomes a matter of human experience and common sense. [77] The following cases relied on by the respondent do not assist him: R. v. Gibson, 2003 BCSC 538; R. v. Groot, [1998] O.J. No. 3674 (Ont. C.A.). STANDARD OF REVIEW [78] The standard of review for questions of mixed fact and law is explained in Housen v. Nikolaisen, 2002 SCC 33 at paras. 26 and 33 [Housen]. [79] The findings of fact in this case, including whether the respondent was clenching the flashlight in his hand, his awareness of it when he assaulted the complainant, and his acquittal of the assault with a weapon charge, are not in question. Findings related to the s. 34 and s. 35 issues and to the assault are also not in issue; and the bodily harm the assault caused was an admitted fact. A question of palpable and overriding error on material questions of fact or factual inferences is not at hand, rather the trial judge's application of a legal standard to the facts. [80] The question of whether the respondent's actions met the appropriate standard of care is one of mixed fact and law. [Housen at para. 33.] Once the facts have been established without overriding and palpable error, a question of whether the accused satisfied the appropriate standard of care is reviewable on a standard of correctness. [Housen at para. 33.] If the decision maker applied the wrong law, or if an erroneous finding of the trial judge can be traced to their error in characterizing the legal standard, correctness is the standard of review, unless deference is required. [Housen at paras. 27 and 33.] [81] I find correctness is the appropriate standard of review in this case. [82] The question of whether a bare-fisted punch to the face did not create a foreseeable risk of bodily harm to the complainant is one of fact; but as discussed above, the correct legal principle was not applied. APPROPRIATE REMEDY [83] The appellant submits that the appropriate remedy in this case is to overturn the respondent's acquittal on the offence of assault causing bodily harm and to substitute it with a conviction for that offence. [84] Section 686(4)(b)(ii) of the Code, requires that before I can substitute a conviction for an acquittal, I must have more than a reasonable degree of certainty that the trial judge's findings of fact, viewed in light of the applicable law, supported a conviction of assault causing bodily harm beyond a reasonable doubt, but for his error of law. [85] Furthermore, given that the trial judge convicted the complainant of the included offence of common assault, it also being an accepted fact that the assault caused serious bodily harm, I find it was the errors made in application of the law of foreseeability of bodily harm that led to the respondent's acquittal, rather than conviction of assault causing bodily harm: R. v. Graveline, 2006 SCC 16 at para. 14; R. v. McRae, 2013 SCC 68 at para. 37. SUMMARY [86] In summary: 1. Subjective foresight of bodily harm is not a necessary mens rea requirement for assault causing bodily harm. 2. As discussed in these reasons, from a review of the authorities it appears objective foresight of bodily harm is a not a mens rea requirement in British Columbia for the offence of assault causing bodily harm. However, this remains uncertain. 3. If objective foreseeability of bodily harm is not a necessary element of the offence of assault causing bodily harm, all the necessary elements having been clearly established, the respondent's conviction of assault causing bodily harm would inevitably follow. 4. For the purposes of this appeal, the respondent was given the benefit of the doubt that objective foresight of bodily harm is an element of the offence of assault causing bodily harm. 5. The trial judge erred in his analysis of foreseeability of bodily harm by incorporating subjective foreseeability. 6. The trial judge did not correctly state or apply the law of objective foreseeability harm in his analysis. 7. It was objectively foreseeable the respondent's punch to the complainant's jaw posed a risk to him of bodily harm. 8. It is not in issue the respondent's application of force caused the complainant bodily harm. 9. Errors the trial judge made in his application of the law of foreseeability of bodily harm led to the respondent's wrongful acquittal of assault causing bodily harm. [87] The trial judge's findings of fact, viewed in light of the applicable law, supported a conviction of assault causing bodily harm beyond a reasonable doubt. 10. The respondent's conviction for assault is set aside, his acquittal of assault causing bodily overturned, and he is convicted of assault causing bodily harm. Accordingly, he is set over for sentencing in the Provincial Court. "N. Brown J."