IN THE PROVINCIAL COURT OF BRITISH COLUMBIA
ADAM DAVID HUBER, ROBERT WILLIAM ROY RODGERS and
DAVID SAMUEL WHITE
REASONS FOR JUDGMENT
HONOURABLE JUDGE DOHERTY
Counsel for the Crown: R. Richardson and M. Giri
Counsel for the Defendants: T. Marino for A. Huber; D.J. Marion for R. Rodgers;
E. Chesterley for D. White
Place of Hearing: Courtenay, B.C.
Date of Hearing: May 25, 26, 27 and June 28, 2010
Date of Judgment: July 29, 2010
 On a soft summer evening, in the beautiful Comox Valley, a very ugly incident took place. Three young white men, fuelled by alcohol and testosterone and their own immaturity, crossed paths with a black man and lives changed forever. The acid fog of racism permeates this case.
 Adam David Huber, Robert William Roy Rodgers and David Samuel White are charged on Information 36042-1; on or about the 3rd day of July, 2009, at or near Courtenay, in the Province of British Columbia, did commit assault of another person, Jason Eli Phillips, contrary to Section 266 of the Criminal Code.
 All 3 plead not guilty. Trial was held before me on the 25thand 26th of May 2010 and submissions were heard on June 28, 2010, Judgement was reserved to this date.
 A common assault charge rarely makes the local media, let alone receives international attention. However, this case has become infamous because part of the incident was captured on video, immediately uploaded to Youtube, and went viral. But the Youtube segment is misleading. To view it out of context is akin to walking into the middle of a movie. At that stage, characters have already formed, the storyline established, and the plot well along. So it is in the case at Bar.
 To understand what really happened, it is necessary to go back to the beginning. The 3 accused spent a warm summer’s day tubing down a local river. How much each of them had to drink is uncertain but it is certain they had been drinking. At the end of they day they decided to go to the local McDonald’s for burgers. The 3 accused were ferried there by a 4th individual who had the good sense not to become involved in what transpired next.
 Mr. Huber and his wife owned a roofing business and it was the company truck, an older model red pickup, in which they were riding. Mr. Huber and Mr. Rodgers were inside the cab of the truck. Mr. White rode in the bed. After obtaining their food they exited the drive-thru. Mr. Phillips was standing nearby speaking with a friend. Mr. White, for reasons known only to himself, hurled a racial epithet at Mr. Phillips involving what has euphemistically been called throughout the trial as the ‘N’ word. As the truck was passing Mr. Phillips, Mr. White said; “There’s a nigger.” Mr. Phillips responded “Fuck you”, and threw his water bottle toward the truck. Mr. White then said “Fuck you, you fucking nigger, we are going to come back and kill you and your family.” What Mr. White said was ugly, racist, and provoking. It is not surprising, then, that Mr. Phillips reacted by throwing a water bottle at the receding truck. It is not surprising, either, that he was enraged. Mr. Phillips was so blinded by rage, he saw a Confederate Flag in the back window of the pickup truck that simply was not there.
 Mr. Phillips lived across the street from the McDonald’s. He was on his way to his local gym for a workout, wearing gym strip and carrying a water bottle. Just as he was about to get into his car, he spotted a young man on a bicycle he had not seen in some time. He walked across the street to say hello. It was while he was chatting to the young man, that the truck crossed his path.
 There was much speculation by defense counsel that Mr. Phillips, who has a history of substance abuse and who once committed a robbery to support a drug habit, was engaged in a drug deal. The actions of Mr. Phillips subsequent to the assault were very strange indeed but the speculation that he was dealing remains. I want to emphasize, just that – speculation. In the end, it does not matter one way or the other to the issue at hand – except to note that Mr. Huber when confronting Mr. Phillips thought he was high on something. I think he was just in a rage.
 As I have observed in other cases, it has been my experience that the collective IQ of young men, filled with testosterone and alcohol, declines with the numbers involved. In relation to the 3 accused, that certainly proved to be the case. Mr. White, after shouting racist remarks to Mr. Phillips observed that Mr. Phillips threw something at the truck. He thought it was a burger or a wrap. He reported this to his friends in the cab of the truck. It is evident that some discussion ensued about what to do about such effrontery because the truck did not immediately turn around but went at least two blocks before the decision was made to return and confront Mr. Phillips.
 Mr. Phillips watched as the truck departed, saw it turn, and crossed the street and waited for a confrontation.
 What happened next, the key to understanding how verbal exchanges between pumped up young men became physical, is a matter of some dispute.
 Mr. Huber confronted Mr. Phillips and demanded to know why Mr. Phillips threw something at his truck. Because, said Mr. Phillips; “One of you called me a nigger.” Mr. Huber unable to walk a mile in the shoes of Mr. Phillips, let alone stand in them for even one moment, repeated the question several times. One would think this truck was a Faberge Egg, the way Mr. Huber went on and on about an item thrown at his truck.
 Mr. Phillips said the ensuing fight was not consensual. At least on some occasions he said that, on other occasions he said something quite different. Mr. Phillips said many things, not all of them consistent. At trial, it was abundantly evident that Mr. Phillips was still very angry, to such an extent that it affected his testimony.
 Fortunately, there is an independent witness. A Mr. Cossette was passing by and observed key events before they were picked up by the video camera. Mr. Cossette was going to the PetroCan at Cliffe and 17th. His route took him north on England Avenue and he intended to walk east on 18th. At that point he observed 3 white men, their backs to him, facing Mr. Phillips. He heard Phillips say; “Wanna go? Let’s go.” He then saw Mr. Phillips shove one of the white males. That was Mr. Huber. According to Mr. Cossette, Mr. Phillips ‘clothes-lined’ Mr. Huber and sent him to the ground. Mr. Cossette, who does not know any of these people, said he heard no racial epithets but did describe Mr. Phillips as very loud and the three white men as “hesitant.”
 Mr. Phillips said the three accused exited the truck and began to trash talk; “This is a white town. We are going to lynch you.” Mr. Cossette heard none of that. According to Mr. Phillips the accused kept calling him a ‘nigger’. If true, and Mr. Phillips was not enraged before, and most certainly he was, he was to the point of being irrational when the confrontation started. Mr. Phillips described what we all saw on the video but he is rather vague about what happened before the action was caught on camera. In direct examination, Mr. Phillips said; “I did not want to fight them. I never challenged any of them to fight.” That is simply not true. In fact, Mr. Phillips told a police officer, immediately after the event, that he agreed to fight the three accused, that he’d had enough [meaning, generally, that he had enough of racial slurs in his life] and that he was, in effect, taking a stand on this occasion. He said; “I fought those guys for all the other black guys in Courtenay.” The evidence, in that regard, is consistent with that of the independent witness, Mr. Cossette.
 During Mr. Marion’s cross, Mr. Phillips denied telling police that he said to the 3 accused; “If you want to go, let’s go.” He denied telling Cst. Downey that he challenged the 3 accused to a fight. Eventually, he conceded that it was possible that he did say those things and did challenge all 3 to fight.
 Mr. Phillips went further. He said that he was unafraid of the 3 accused, he just did not know if he could handle all 3 of them at once. He was, I observe, considering the provocation of taunts and racial slurs, just angry enough to try. Mr. Phillips said he was contemptuous of the 3 accused and laughed at them.
 The video of the confrontation speaks for itself in the limited sense that it accurately portrays what happened after Mr. Phillips invited the fight. For a moment or two the accused got the better of Mr. Phillips but he jumped up and went right after Mr. Huber at the passenger door of the truck. Mr. Huber, at that time, was attempting to flee the scene with his co-accused. Mr. Phillips, even after being on the ground and temporarily vanquished continued to yell “come on, come” and shouting that they were all dead.
 Given the evidence of Mr. Cossette, and indeed the evidence of the complainant himself, I conclude that the fight between Mr. Phillips and the 3 accused was consensual. As I said, Mr. Phillips was angry to the point of being entirely irrational. It is not much of a reach to conclude that in his, quite understandable, blind rage he wanted to strike out and entirely willing to take on all of his tormentors.
 The consent here was not one sided. Clearly the 3 accused were prepared to accept Mr. Phillips’ challenge and fight him as a trio. Mr. White provoked Mr. Phillips from the outset and continued to do so throughout the altercation. Mr. Huber and Mr. Rodgers refrained from uttering racial slurs but were willing participants in the fight.
 The fact that the fight was consensual does not end the matter. A consensual fist-fight between, in this case, among adults is not necessarily fought under Marquis of Queensbury Rules but there is, nonetheless, always a question of vitiation. Vitiation may destroy or impair the legal validity of consent. The question here, to put it plainly, is; Did the accused take any action during the course of the fight that vitiated consent?
 The leading case on this matter is R. v. Jobidon  S.C.R. 714, in which the limits of consent are discussed. Very violent force, that causes serious hurt or non-trivial bodily harm, is not recognized as conduct to which one can validly consent. The bodily harm contemplated is essentially that found in s.267  of the Criminal Code.
 In British Columbia, it has long been settled law, starting with R. v. Dixon  42 CCC [3d] 318 [BCCA] that bodily harm is caused when the hurt or injury is beyond transient or trifling in nature.
 The questions for the Court are, therefore:
1. Did the actions of the accused go beyond what was, in effect, a consensual fist-fight?
2. If so, what were those actions?
3. Finally, did Mr. Phillips sustain bodily harm as result of those actions thus vitiating consent?
 The answer to the first question is; “Yes”. The actions of two of the three accused did go beyond a consensual fist-fight.
 The answer to the second question is; “Kicking”. Mr. Phillips was kicked at least five times; twice by Mr. White and at least three times by Mr. Rodgers, who applied two of those kicks to the rib area after Mr. Phillips had been knocked down and while, for a moment, he was practically helpless.
 The answer to the last question is; “Yes”.
 Mr. Phillips sustained two injuries that fit within the definition of bodily harm. He sustained a cut near his eye that required a couple of stitches. However, it is impossible to ascertain when exactly in the sequence of events he received that cut. It might well have happened as Mr. Huber tried to quit the fight and while Mr. Huber was trying to get into his truck to leave. Mr. Phillips rushed at Mr. Huber clearly wanting to continue the altercation and it appears he was struck by Mr. Huber. It is likely the injury Mr. Phillips sustained, necessitating stitches, was caused at that time. That punch thrown by Mr. Huber might well come under the rubric of self-defense, or a continuation of the consensual fist-fight, and I need not consider it further.
 The second injury sustained by Mr. Phillips was to his ribs. I find this injury caused by Mr. Rodgers who can clearly be seen vigorously applying his shod feet to the rib area of Mr. Phillips.
 Mr. Phillips testified that he had sore ribs for approximately two months. Photographs were filed that showed bruising. Clearly, that injury comes within theCriminal Code definition of bodily harm and R. v. Dixon cited above. This is important because, while these accused are not charged with assault causing bodily harm, causing such harm in a consensual fight vitiates consent.
 In R. v. DeCoste  N.S.J No. 410, the Court said at paragraph 26 :
“While the court should discourage fights it is clear that a person can consent to the application of force by another and until a finding is made that the accused intended to cause bodily harm that consent permits punches to the head. Most fights involve an attempt to strike the other person in the head. That should be expected when one consents to a fist-fight.”
 What is not expected in such a consensual fist-fight is that an individual will resort to kicking, the current popularity of MMA (Mixed Martial Arts) notwithstanding. Mr. Phillips clearly did not resort to that tactic but two of the accused did exactly that. It is not an unreasonable inference that a person engaged in an altercation, such as the one under discussion, who resorts to such methods intends bodily harm. I find the kicking was intended to cause bodily harm and, in fact, did so.
 My finding is that, initially, despite a 3 on 1 confrontation this was a consensual fist-fight. Two of the accused resorted to kicking. The kicks applied to Mr. Phillips while he was on the ground were beyond the consensual nature of the fight. They were applied with force and I infer they were intended to cause, and did in fact cause, bodily harm. Consent, therefore, was vitiated.
 I expect that 3 on 1 consensual fist-fights are not common. One of the risks participants assume in such an altercation is that one of their number will do something that vitiates consent. In this case it was Mr. Rodgers who resorted to kicking causing bodily harm. All 3 individuals become party to the offence and, therefore, all 3 are found guilty of common assault.
The Honourable Judge P. Doherty