A teen who took part in an attack against a man playing tennis alone in a Vancouver Island park, leaving him maimed and disfigured, has lost his appeal that argued he was acting in self-defense.
The 15-year-old youth, whose name is protected under the Youth Criminal Justice Act, was found guilty of assault causing bodily harm and assault with a weapon in April 2018. A B.C. appeals court judge dismissed his appeal on Oct. 25 in Vancouver, according to court documents published Wednesday.
The teen, referred to in the decision as A.A., was one of four youth found guilty of assault-related charges in connection to the incident at Centennial Park in Duncan in August 2016.
A provincial judge heard during the teen’s initial trial that the group of youth were walking by a tennis court where they saw a 52-year-old man named B.B. hitting a tennis ball against a wall on one of the courts. The group called the man a “loner” or “loser” at least twice before the man lobbed a tennis ball towards them, sparking one of the other teens, dubbed E.E., to shout further insults.
The man then exited the tennis court with his tennis racket in hand and chased the youth into a wooded area – a move the man himself called an “aggressive pursuit,” which he anticipated would end in some kind of physical confrontation that would include pushing, shoving, and possible punching.
Accounts of exactly what happened in the woods are varied, according to testimony and evidence brought forward by police.
According to the man, pushing ensued between E.E. and the man for about 30 to 40 seconds before he was hit in the back of the head with an object, the court heard. The man said he backed away, telling the youth to stop, before pushing and shoving with the same teen recommenced until he was hit again. The man identified E.E. as the youth who hit him a third time with the racket, while calling him a “little b***.”
His next memory was waking up in the woods, with the youth nowhere in sight.
Meanwhile, the teen appealing his conviction, A.A., told police that he punched the man in the face before he started fighting with E.E., who hit the man in the ribs with a log. The teen also said that the man had pushed him into a pile of sticks, cutting his leg, before E.E. hit the man again – this time in the head.
As the youth were walking away, maybe 15 to 20 steps, the man picked up a log lying on the trail and said “one of you is going to die,” before running towards them. He hit A.A. in the hip, neck and forearm with the log, the court heard. The teen then punched the man in the face, again, as well as kicked him in the knee. As the man fell to the ground, another teen kicked him in the face – believed to be E.E.
The man was left with severe and permanent injuries, the court hear, including broken bones in his face which required surgery to repair.
The presiding judge had determined that the teen’s initial response of punching and shoving the man who was similar in size was proportional to the man’s force but that he should have walked away after knocking the man to the ground.
“A.A. was a young man, approximately six feet tall, who played competitive football, and had the advantage of at least one other teen fighting alongside him,” the decision reads.
“In particular, the judge found that once B.B. [the man] was on the ground a second time, it was no longer necessary for A.A. to continue striking him.”
Because the judge couldn’t determine beyond a reasonable doubt who caused the specific injuries suffered by the man, A.A. was acquitted of aggravated assault.
In his appeal, the teen’s lawyer argued that the judge never asked if the teen felt threatened by the man, nor adequately considered his young age at the time of the incident.
But Justice Patrice Abrioux disagreed, siding with Crown counsel that the teen was old enough to know what he was doing when the fight broke out and that while he may have started acting in self defense, the teen’s actions did turn into retaliation with the intent to injure the man.
“Of significance is that the judge found A.A.’s use of the tennis racket to attack B.B. objectively unreasonable—it was unnecessary, gratuitous, and no longer proportionate to the threat of force he previously faced.”