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Case Name:R. v. Tabbara

BetweenHer Majesty the Queen, and

Mohammed Jihad Tabbara, Defendant

[2009] O.J. No. 1895

Court File No. 06-8829

Ontario Superior Court of Justice

J.A. Blishen J.

Heard: February 17-18, 20 and 23, 2009. Judgment: April 28, 2009.

(52 paras.)

Criminal law -- Criminal Code offences -- Offences against person and reputation -- Homicide --Manslaughter -- Accused convicted of manslaughter -- Accused and a friend confronted three men -- During confrontation, accused punched victim in the neck area after which victim collapsed anddied -- Pathologist concluded victim died of rupture of the right cerebellar artery caused by suddenviolent torsion of victim's head and that torsion was caused by accused's punch to the neck area --Crown established accused's punch caused torsion of head which caused artery to rupture -- Noreasonable possibility that torsion of head was caused by physical contact with any of the other menor by victim's fall.

Trial of the accused charged with manslaughter. The accused and his friend confronted three otheryoung men on the street. The accused punched the victim in the neck area during a confrontation.After 18 seconds, the victim collapsed and died. There was no evidence of any other physicalcontact or blow to the victim after the accused's punch. Based on the pathologist's report, the victimdied due to a rupture of the right cerebellar artery at the back of the neck and base of the skullcaused by a sudden, violent torsion of the head. At issue was whether there was evidence of anyother physical contact between the victim and any of the other young men that could have causedthe violent torsion of the victim's head. The defence called no evidence at trial. The confrontationwas video recorded by a nearby bar and there was one independent witness.HELD: The accused was convicted. The Crown established that the accused assaulted the victim bypunching him in the back of his neck. A reasonable person would be well aware that bodily harmwas a foreseeable consequence of such an action as it was objectively dangerous to punch someonein the head which could involve injury to the brain or result in a fall in which the victim strikes hishead. The blow administered by the accused was to the area which was identified by the pathologist

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as the area which would have caused the torsion of the head. The torsion was caused by the punchadministered by the accused. It was not a reasonable possibility that any other contact with anyother men could have caused a sudden violent rotation or torsion of the victim's head. Consideringthe manner in which the victim fell, it was also not reasonably possible that his fall caused thesudden violent torsion of his head.

Statutes, Regulations and Rules Cited:Criminal Code, R.S.C. 1985, c. C-46, s. 2, s. 236, s. 265(1) (a)

Counsel:Meghan Cunningham, for the Crown.James Foord, for the Defence.

J.A. BLISHEN J.:--Introduction1 On June 24, 2006 Tim Wojna and his friend Dixie Duggan were out drinking in the market areaof Ottawa. A few hours later, while walking past the Elgin Street Diner, they were confronted bythree young men who had also been out for a night of drinking with friends. One of the three wasthe accused Mohammed Jihad Tabbara. A two minute confrontation ensued, near the end of which,Jihad Tabbara punched Tim Wojna in the back of the head/neck area. The confrontation betweenthe two groups tragically ended, approximately 18 seconds later, with Tim Wojna's collapse to theground and ultimate death. Jihad Tabbara was charged with manslaughter in causing Mr. Wojna'sdeath, contrary to s. 236 of the Criminal Code, R.S.C., 1985, c. C-46.2 The major issue in this case is causation. Did Mr. Tabbara commit an objectively dangerousunlawful act that was the sole cause or a significant contributing cause to Tim Wojna's death?Evidence and Findings of Fact3 After hearing all the evidence at trial, there are certain aspects of the evidence which are not indispute and findings of fact that can be made as follows:

1. Jihad Tabbara punched Tim Wojna as he was walking away, on the backright side of the head/neck area.

2. Approximately 18 seconds later, Tim collapsed to the ground and died.3. There is no evidence of any other physical contact or blow to Tim Wojna

after the accused's punch.4. Tim Wojna died due to a rupture of the right posterior/inferior cerebellar

artery at the back of the neck and base of the skull, which led to bleedingin and around the brain.

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5. The rupture was, in the opinion of forensic pathologist Dr. Brian Johnson,caused by a sudden, violent torsion or rotation of the head. There is noevidence of any other cause of the rupture.

6. The only other injury relevant to Mr. Wojna's death was a recent, small,internal bruise, a soft tissue injury, near C2 vertebra at the back of his neckon the right side, caused by mild to moderate blunt force trauma.

7. There is no evidence that the nature of Tim Wojna's fall or collapse to theground contributed to the injuries which led to his death.

8. According to Dr. Johnson, a small bruise and superficial laceration toTim's lower right lip was likely caused by medical intervention after deathand was not inflicted during the altercation.

4 The question remains is there evidence of any other physical contact or activity between TimWojna and any of the other young men that raises a reasonable doubt as to who and/or what causedthe violent torsion of Tim's head leading to the arterial rupture and his ultimate death?

5 At trial the Crown called: Tim's friend, Dixie Duggan; Jihad Tabbara's friends, Brian Herbertand Diar Hosseini, who were standing with him outside the Diner; two other friends of the accusedwho had been drinking with him that night; a bouncer Benoit Boulais, who observed part of thealtercation; a paramedic and police officer who attended the scene; the police identification officerand forensic pathologist, Dr. Brian Johnson.6 Mr. Tabbara did not testify and the defence called no evidence.

7 In addition to the testimony of the witnesses, the Crown filed two DVDs made from a videorecorded that night outside the SIN Bar next to the Elgin Street Diner, on which it is possible to seemost of the two minute long confrontation (Exhibits 9 and 10). The integrity and accuracy of therecordings were admitted by the defence. The witnesses present during the confrontation clearly andconsistently identified themselves and others present during the playing of the videos and in a seriesof still photographs taken from the videos, also admitted on consent.

8 A DVD of video clips recorded inside the Elgin Street Diner that night, both before and afterthe confrontation was also filed on consent (Exhibit 8), as were still photos from the video clips.The witnesses again clearly and consistently identified the individuals present as the video clipswere played and on the photographs. The integrity and accuracy of the recording inside the ElginStreet Diner were admitted by the defence.9 Three of the witnesses, Tim Wojna's friend Dixie Duggan and Mr. Tabbara's friends BrianHerbert and Diar Hosseini, acknowledged being intoxicated at the time of the incident. Mr. Herbertand Mr. Hosseini were unable to independently recall much about what happened during the twominutes outside the Elgin Street Diner. Mr. Herbert responded "I don't remember" frequently duringhis testimony and indicated this was largely due to the amount of alcohol he had consumed. Mr.Hosseini indicated he was "very drunk"; he gets black outs when he drinks and he could remembervery little about that night. I find both Mr. Herbert and Mr. Hosseini unreliable and thereforeunhelpful witnesses.10 Tim Wojna's friend Dixie Duggan testified that he was also intoxicated that night. He was ableto recall more details of the confrontation, although not all. The police officer who arrived on thescene at the end of the confrontation testified that Mr. Duggan was agitated but the effects ofalcohol appeared to be minimal to none, at that point. Some of the details provided by Dixie

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Duggan when testifying were inconsistent with those provided during his deposition. Nevertheless Ifind Mr. Duggan a credible witness and more reliable than Mr. Herbert or Mr. Hosseini.

11 The only independent witness to the confrontation was bouncer Benoit Boulais who, after hisshift at the Griffin Night Club was on his way to a shawarma restaurant approximately three doorsdown from the Elgin Street Diner. He had been working all night and had consumed no alcohol. Mr.Boulais gave his evidence in a calm, straightforward manner. His testimony under cross-examination was largely consistent with his examination-in-chief. He had no motivation to fabricateand knew none of the five young men, although he had encountered one of them previously whenworking at another night club. Mr. Boulais was approximately 1 meter away from the five youngmen when his attention was drawn by the arguing between two groups. I find him a credible,reliable witness. Unfortunately he only observed the latter part of the altercation.12 The video recording made outside the SIN Bar accurately reflects what happened from2:53:22 a.m. to Tim's collapse at 2:56:23. It is accurate but not complete. It is not possible to see allof each of the five young men at all times. They move in and out of the frame and at times are onlypartially visible. Nevertheless, although there are limitations, the recording is the best and mostaccurate evidence as to what occurred. The testimony of Benoit Boulais and, to some extent, DixieDuggan is also of assistance.13 The video records the following:

1. At 2:53:07 Jihad Tabbara and his friends are standing outside the ElginStreet Diner.

Brian Herbert testified that he began drinking with friends late in theafternoon of June 24, 2006 and continued drinking until last call on June25th, when he and his friends Jihad Tabbara, Diar Hosseini, Attila Balinet,Lee Galka, Brian's girlfriend Desiree and her sister Alana left the GriffinNight Club and went to the Elgin Street Diner to get something to eat.Eventually all seven of them were seated and ordered food. Brian Herbertrecalls he and Jihad leaving the diner for a cigarette and being joined byDiar. Diar recalls standing outside with Jihad and Brian but does not recallwhy he was there.

2. Dixie Duggan and Tim Wojna walk by, turn and stop approximately 15seconds later.

Dixie Duggan testified that he went out drinking that night with his friendand roommate Tim Wojna and some other friends, in the market area ofOttawa. Tim was wearing a cowboy hat that evening which Dixie hadloaned him. Mr. Duggan testified they were both "happily intoxicated" andhaving fun. There had been no fights or altercations that evening andneither he nor Tim suffered any injuries before they met the other threeyoung men outside the Elgin Street Diner.

As they were walking down Elgin Street on the way home, Dixie and Timwere confronted by three guys outside the SIN Bar and the Elgin Street

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Diner. Mr. Duggan recalls one of the three stating "get off our turf", "whatare you looking at, keep walking" or something to that effect. Tim wasgiggling and Dixie smiling. He thought the situation was funny. DiarHosseini recalls Jihad telling Dixie and Tim to keep walking and someone,he believes Tim, laughing. Brian Herbert recalls saying something like "goon get out of here...keep walking". He cannot recall what anyone else saidbut indicated that words were being exchanged and the tone was notfriendly.

3. The video shows the arguing between the two groups; hand and armgestures are made and the arguing escalates.

4. At 2:55:03 on the video, Brian Herbert and Tim Wojna are face to facewith Mr. Herbert moving closer. At this point it is only possible to see Mr.Herbert from the neck down and Mr. Wojna from the mid-chest down. Mr.Herbert steps towards the right side of Tim Wojna while Tim remainsstanding with his hands in his pockets. Mr. Herbert raises his right handwhile the two are standing close together. It is not possible to observe anycontact. Mr. Wojna remains stationary and his hands remain in his pockets.Mr. Herbert's right hand comes back down and he moves off a bit to theright while Mr. Wojna remains standing in the same position with hishands in his pockets. This I will call Interaction #1. None of the witnessespresent specifically recall this interaction.

5. At 2:55:07 on the video, Diar Hosseini steps forward with his right footand swipes toward Tim Wojna with his left arm and hand open in front ofTim's upper body. Tim's hands remain in his pockets and he remainsstationary. Mr. Hosseini lowers his left arm and knocks Jihad Tabbara'scigarette out of his right hand. Tim Wojna remains standing in the sameposition with his hands in his pockets. Diar Hosseini raises his right armwith hand open and swipes towards Tim Wojna's upper body. Tim turnsslightly to his right but his feet remain in the same position as do his hands- in his pockets. This is Interaction #2.

Mr. Hosseini does not recall this interaction but stated that if he hurtsomeone he believes he would remember. He cannot recall his swings or ifthey connected with Tim. He stated again that he was very drunk and whenhe is drunk he has black outs. Neither Brian Herbert nor Dixie Dugganrecall this interaction.

6. The recording shows that at 2:55:09 Tim Wojna turns further to his right,up against Brian Herbert, face to face. Brian Herbert raises his right hand,Tim turns his upper body a bit more but does not move. He then takes hisleft hand out of his pocket. It is not possible to see his head. The cowboyhat on Tim's head falls directly behind him and Tim takes a step back withhis right foot and then his left foot, hitting the hat which is on the groundbetween his feet. This is Interaction #3.

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Brian Herbert acknowledges that the video recording shows he and TimWojna becoming, as Mr. Herbert described it, "a little close". Mr. Herbertdoes not recall this nor does he recall Mr. Wojna's hat coming off.

Mr. Duggan recalls a young man in a tee shirt, later identified as BrianHerbert coming forward and swatting the cowboy hat off Tim's head. Hetestified that Mr. Herbert hit the front of the brim and the hat and Mr.Duggan demonstrated with an open hand in an upwards motion. This allhappened very quickly. Under cross-examination, Mr. Dugganacknowledged that on discovery he thought there may have been somecontact with Tim's head.

7. At this point, 2:55:11, Benoit Boulais appears on the video walking downthe street. Tim Wojna lunges toward Brian Herbert with his right leg. Tim'sleft arm is bent at the elbow. Brian Herbert turns to his left and all that isvisible at this point are the legs of Tim and Brian. Tim steps back with hisright foot, lowers his left arm and then raises and lowers it again. Helunges forward again with his right foot and arms out of the frame, stepsback and back again with his left arm down facing Brian Herbert. Timsteps back again. Brian steps forward with his right foot, kicks Tim's hatwith his right foot, and then steps back. This is Interaction #4.

Benoit Boulais testified that his attention was first drawn to the two groupsby arguing between them. He observed Tim Wojna verbally arguing aswell as making gestures with his hands as if throwing fake punches.Although Mr. Boulais does not recall the exact words said, the group ofthree were saying something like "get out of here", "we're going to hurtyou". He believes Tim was saying something about marshal arts, jiu jitsu,and acting somewhat aggressively. He appeared to be intoxicated. WhileTim was about 1' to 2' away from the group of three he began throwingfake punches or as Mr. Boulais termed it "elbows". Mr. Boulais did not seeTim Wojna come into physical contact with anyone nor they with him. Mr.Boulais did not observe how Tim's hat got on the ground.

Mr. Duggan does not recall Tim lunging back and forth or "throwingelbows", as Mr. Boulais stated, despite that being obvious on the video, nordoes he recall anyone else lunging towards Tim and kicking the hat.

All Brian Herbert was able to recall was at one point taking a step towardsMr. Wojna who was being somewhat confrontational and then later seeingTim Wojna lying on the ground. He does not remember how Tim got there.Mr. Herbert testified under cross-examination that he could "confidentlysay" he did not strike Mr. Wojna, although he cannot deny that he swung athim or bumped or touched him. He has no recollection of exactly whathappened. His evidence is of little assistance.

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8. The video shows that Tim turns and is backing away. At that point,2:55:21, Jihad Tabbara and Diar Hosseini begin to move towards him.Dixie Duggan places his left arm up against Diar Hosseini's lower chest asif holding him back. Jihad Tabbara is gesturing with his right hand and armand pointing his right index finger at Tim who is turning and walkingaway.

9. At 2:55:23 Tim bends over and grabs his hat with his right hand whileJihad Tabbara continues to point at him with his right index finger and armextended. Dixie Duggan still has his left arm against Diar Hosseini's chest,who is moving forward as well.

10. At 2:55:24 Tim sweeps his hat off the ground in front of him with his righthand, turns to his right and begins walking away with his back to theothers. Diar Hosseini is still advancing towards him and Dixie continues tohold his left arm against Diar's chest.

11. Jihad Tabbara continues to advance on Tim Wojna with his right indexfinger pointing and his right arm extended.

12. At 2:55:26 Tim Wojna has his back to Jihad Tabbara who is behind him.Tim transfers his hat to his left hand and is moving it towards his head.

13. At 2:55:27 Jihad Tabbara places his left hand towards Tim's back area andlunges way forward with his left foot, his right arm cocked at the elbowand his fist clenched. Jihad Tabbara leans forward into the punch with hisright fist towards the right side of the back of Tim's head/neck area. This isInteraction #5.

Dixie Duggan recalls Tim picking up his hat, putting it on his head andexchanging a few more words with the other group. Dixie and Tim thenlooked at each other and decided to leave, as things were getting out ofcontrol. They turned and started to walk away. Mr. Duggan observed oneof the men, later identified as Jihad Tabbara, lunge forward and punch Timin the centre/right back of his neck.

Mr. Boulais noted that Tim Wojna and Dixie Duggan seemed to loseinterest and began walking away, when Mr. Tabbara punched Mr. Wojnain the back of the head with his right fist. Mr. Boulais noted that the punchlanded on the right side of the back of his neck. He saw it connect.

14. The video shows Tim Wojna's left leg bending and he stumbles to the left.Mr. Tabbara steps back and it is possible to observe Tim's shadow. He hashis hat on with his hands up to his head. He sways, appears to stumble andthen comes forward. Jihad Tabbara's right fist is still clenched. Mr.Tabbara then points his right index finger at Tim Wojna who is backingaway as Mr. Tabbara continues to advance towards him. It is possible tosee Tim Wojna's shadow, with his right hand up towards the right area ofhis hat. They both go off screen. Tim's hands are lowered by his sides andhe proceeds around to the right completely off screen.

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15 At 2:55:45 Tim collapses and ends up on his back with his friend DixieDuggan by his side. Tim puts his left arm up to his head while his right armremains by his side and his hat remains on.

Dixie Duggan testified that Tim stumbled, lurched, looked at Dixie,walked towards him, said "something's not right" and then collapsed. Heseemed dazed; his head was on the ground and his eyes were closed. Atthat point, he appeared unconscious. There were no other hits to Tim afterthe strike to the back of the head and Mr. Duggan observed no injuries toTim's face.

Mr. Benoit testified that after being punched, Tim Wojna walked around ina semi-circle towards the SIN Bar door and then collapsed. His knees gaveout and he slouched over onto his side and then onto his back. Mr. Boulaistestified that he saw no one else strike Mr. Wojna that night.

16. At 2:55:49 on the video, an unknown male stands in front of Jihad Tabbaraand confronts him. Dixie Duggan also confronts Mr. Tabbara and points athim while Mr. Tabbara points at Dixie. The gesturing continues, with Mr.Duggan gesturing towards Tim Wojna lying on the ground.

17. At 2:56:00 Dixie Duggan goes over to Tim Wojna while Jihad Tabbaraand Brian Herbert, followed by Diar Hosseini, turn and walk away,towards the Elgin Street Diner. Mr. Boulais and the unknown male remainand Dixie Duggan is still beside Tim. Mr. Duggan then throws off hisjacket or vest and begins to follow the three, gesturing at them. Therecording ends when the unknown male goes over to Tim Wojna followedby Mr. Boulais.

Dixie Duggan testified that he followed Jihad Tabbara and the two othersas they headed towards the diner. Diar Hosseini turned around and he andMr. Duggan began shouting at each other. Mr. Duggan recalls indicating"you hurt my friend". They were close to one another, at which point abystander said to cool it and Mr. Duggan returned to check on Tim. Shortlythereafter the paramedics and the police arrived. Mr. Duggan testified thatno one else struck Tim in the head or had contact with him.

14 Mr. Tabbara's friends Attila Balinet and Stanley (Lee) Galka testified as to what took place inthe Elgin Street Diner that night. Their evidence is largely consistent and was not contradicted byBrian Herbert or Diar Hosseini. Both recall after the group entered, sat down and ordered food,Jihad and Brian went out followed shortly thereafter by Diar. A few minutes later Jihad came backin. Mr. Balinet testified that he looked nervous, was fidgeting and said he hit some guy. He mayhave said something like "I just knocked somebody out". Mr. Balinet was not sure of the exactwords but stated that Jihad confessed. He used the word "confessed" a number of times in histestimony.

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15 Lee Galka testified that when Mr. Tabbara returned to the diner, it was clear "something wasup". Brian returned before Jihad and according to Mr. Galka was saying something like "I can'tbelieve this guy". Mr. Galka recalls that when asked, Jihad said something like "I hit this guy" or "Islapped this guy". Mr. Galka observed Jihad to behave basically "normally".

16 Both witnesses recall the police coming in and asking Attila Balinet to go with them. Mr.Balinet told the police that he had not done anything but they insisted that he accompany them andhe did. Once outside, another witness approached the police and indicated that Mr. Balinet was notinvolved. Shortly thereafter, Jihad Tabbara was arrested outside the restaurant. Mr. Galka indicatedthat when he left the diner he saw Tim Wojna lying on the ground.17 When paramedic Krista Shipman arrived on the scene at approximately 2:57 a.m. she saw TimWojna lying on the ground and got on the ground next to him. He was on his back and she held hishead. Ms. Shipman did not observe any blood and did not see any obvious injuries to his face. Shenoted that his lips were turning blue as he was not getting adequate oxygen. She did not note anyinjuries on his lip and testified that she would have documented those if she had seen them. OnceMr. Wojna was placed on the stretcher and lifted into the ambulance, he was intubated. This is anintrusive procedure which, in the opinion of forensic pathologist Dr. Brian Johnson, likely causedthe injury to the right lower lip of Mr. Wojna, observed during the autopsy.18 Paramedic Krista Shipman's evidence is corroborated by that of Constable Grayson Lafoleywho arrived on the scene prior to Ms. Shipman and observed no bleeding or obvious marks ordiscolourations on Mr. Wojna's face.

19 Constable Lafoley further testified that after mistakenly questioning Attila Balinet as thepossible perpetrator of the assault, based on information received from witnesses, Jihad Tabbarawas arrested. Mr. Tabbara was instantly verbally combative and belligerent with the police. He wasarrested for assault bodily harm at 2:57 a.m.

Medical Evidence20 Dr. Brian Johnson, who was qualified as an expert in forensic pathology, performed theautopsy on Tim Wojna on June 26, 2006. His report was filed as Exhibit 7. Dr. Johnson testifiedthat in his expert opinion Tim Wojna's death was caused by:

"...a blow to the back of the right ear, right side of the neck, the upper part of theneck, causing a sudden torsion of the head and thereby tearing a small artery atthe base of the brain, near the forum magnum, where the spinal cord attaches tothe brain, at the base of the skull, and causing hemorrhage within the brain andaround the brain."

21 He noted that ultimately death was caused by the hemorrhaging.22 The blow to the back of the neck was confirmed on autopsy by a small, recent, internal bruisein the area just below and behind the right ear. There was no external bruising and Dr. Johnsontestified that mild to moderate blunt force trauma would cause this type of injury.

23 Dr. Johnson testified that a rupture to the artery at the base of the brain will result in arelatively quick and profuse bleed around the brain, especially at the base of the skull. He noted thatsevere hemorrhaging such as this can often be found in people who have what are termed "berryaneurisms" or congenital weaknesses in the arteries at the base of the brain. These arteries can

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sometimes spontaneously rupture and produce a similar pattern of hemorrhaging. However Mr.Wojna was examined carefully for a berry aneurism and it was ruled out.

24 In his report and in his testimony Dr. Johnson also ruled out any contusion injuries to the brainwhich could be caused by a direct blow to the skull or by someone falling from a standing positiononto a hard surface such as a sidewalk or curb. He stated there was no evidence of that. In additionthere was no scalp bruising which would suggest no significant blunt force injury to the headregion. There were no vertebral fractures which means that there was not another mechanism ofinjury such as a broken neck.

25 Dr. Johnson testified that the traumatic rupture of the right posterior/inferior cerebellar arterysuch as in this case, can be caused by a sudden torsion or a violent rotation of the head. The arteriesin that region are relatively small, in a vulnerable position and can be impinged upon by the duramatter if the head is violently rotated. This rotation is a rotation of the head on the shoulders. Aback to front motion such as an exaggerated nod of the head would be unlikely to cause this kind ofarterial rupture. In addition, a direct blow without rotation would be unlikely to cause this kind ofrupture unless it was quite heavy. Dr. Johnson testified that generally blows to the back of the heador the back of the neck causing rotation are the ones that are associated with a ruptured artery.

26 In order to determine the cause of death, during the autopsy, Dr. Johnson looked for any otherinjury which might have caused a rotation of the head. He looked for evidence of a blow to theupper head area and did not find any. Nor did he see anything in the rest of the autopsy that wouldhave been responsible for Mr. Wojna's death.

27 In his report, Dr. Johnson indicates that ethanol impairment may have been a contributingfactor. Mr. Wojna was found to have a blood alcohol level of .107. The impairment level for theoperation of a motor vehicle is .08. Dr. Johnson stated that if one has been consuming alcohol tothis extent one might not have control of the muscles of the neck and the head might be somewhatfloppy. Therefore, if one is struck there is less of an ability to make the neck muscles rigid andprevent damage to the vertebral artery. In essence, it would be easier to produce the severe torsionwith a lesser degree of force if the muscles are generally floppy.28 Under cross-examination, defence counsel put a number of different scenarios to Dr. Johnsonwhich he agreed were possible but unlikely to have caused the violent torsion, as follows: 1) ifsomeone turned their neck suddenly as a result of an evasive maneuver; 2) an individual engaged inaggressive behaviour, for example exchanging blows; and finally 3) if an individual lost his or herbalance, started to fall and the fall was broken. Those possibilities could not be ruled out medically.Dr. Johnson also indicated that a direct blow to the area of the rupture would be unlikely to causethe rupture without the torsion or rotation described. It is theoretically possible to have the arterialrupture with torsion only and without a blow. Finally, in discussing torsion, Dr. Johnson indicatedthat in his opinion the rupture was caused by one act of torsion and was not the cumulative result ofa number of other actions.29 The loss of balance or capacity to walk would vary depending upon the rate of blood flowingfrom the rupture. Dr. Johnson agreed that there was uncertainty in terms of when a person who hadsuffered the rupture would lose their balance and fall. It could be almost immediately which is morelikely or, theoretically, up to two minutes later.30 Despite the possibilities put to him by defence counsel, Dr. Johnson remained confident in hisopinion as to the cause of death.

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Law and Analysis31 Although not specifically outlined in the Indictment, the Crown is alleging that Jihad Tabbaraassaulted Tim Wojna which inflicted the injury causing his death. In the context of this case,manslaughter is unintentionally causing the death of another person by committing the unlawful actof assault, which is objectively dangerous.32 In order to establish guilt, the Crown must prove the following essential elements beyond areasonable doubt:

(a) that Mr. Tabbara assaulted Tim Wojna;(b) that the assault committed by Mr. Tabbara was objectively dangerous; and(c) that the assault committed by Mr. Tabbara was the sole cause or a significant

contributing cause of the death of Tim Wojna.

Assault33 Pursuant to s. 265(1)(a) of the Criminal Code, R.S.C., 1985, c. C-46 assault is:

1. the intentional application of force by one person to the body of anotherperson;

2. without the consent of that other person; and3. with knowledge that the other person is not consenting.

34 The evidence in this case establishes beyond a reasonable doubt that Jihad Tabbaraintentionally applied force to Tim Wojna by punching him in the right side of the back of his neck.The blow was observed by Benoit Boulais and Dixie Duggan and the beginning of the blow isconfirmed by the video recording. In addition, Dr. Johnson's finding of a recent small internal bruisenear C2 at the back right side of Mr. Wojna's neck, caused by mild to moderate blunt force trauma,confirms the blow by Mr. Tabbara and its location. There is no evidence that in the hours ofdrinking preceding the confrontation, there was any other blunt force trauma to the back right sideof Mr. Wojna's head or neck.35 At the time he was punched, Tim Wojna was walking away, with his back to Mr. Tabbara.There is no question of consent. I find beyond a reasonable doubt that there was no consent and thatMr. Tabbara knew that there was no consent. Therefore, the Crown has proven all the elements ofan assault beyond a reasonable doubt.

Objectively Dangerous

36 An assault will be objectively dangerous if a reasonable person in the same circumstances asthe accused, would have known that if he committed the act it would likely cause bodily harm to thevictim. Under s. 2 of the Criminal Code, supra, "bodily harm" is defined as any hurt or injury to aperson that interferes with the health or comfort of the person and that is more than merely transientor trifling in nature.37 It is not necessary for the Crown to prove that the accused intended to kill the victim nor thatdeath was objectively foreseeable. It is not a defence to manslaughter that death was not anticipatedor would not ordinarily result from the unlawful act. See R. v. Smithers, [1978] 1 S.C.R. 506.Further the Crown is not required to prove that the accused intended to cause bodily harm to thevictim. It is only necessary to prove that a reasonable person in the same circumstances would have

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known that bodily harm to the victim was a foreseeable consequence of the accused's actions. Thistest is outlined in two judgments of the Supreme Court of Canada: R. v. Creighton, [1993] 3 S.C.R.3 and R. v. DeSousa, [1992] 2 S.C.R. 944, and by the Ontario Court of Appeal in R. v. Cribbin,[1994] O.J. No. 477.

38 Mr. Tabbara punched Tim Wojna in the back of his neck. I find beyond a reasonable doubtthat a reasonable person would be well aware that bodily harm is a foreseeable consequence of suchan action. It is objectively dangerous to punch someone in the head which can involve injury to thebrain or, as in R. v. Hanifan, [2001] O.J. No. 1576 (Ont. C.A.) or R. v. Smeeton, [2002] O.J. No.3600 (Ont. C.A.), can result in a fall in which the victim strikes his head.

Causation

39 The Crown must prove beyond a reasonable doubt that Mr. Tabbara struck the blow that wasthe sole cause of the fatal injury or that he struck a blow that was a significant contributing cause ofthe fatal injury.40 In R. v. Smithers, [1977] S.C.J. No. 58 (S.C.C.) the Supreme Court of Canada indicates thatthe unlawful act must be at least "a contributing cause of death, outside the de minimis range". In R.v. Nette, [2001] S.C.J. No. 75 (S.C.C.) the Supreme Court of Canada applies the causation standardexpressed in Smithers, supra indicating it is still valid and applicable. However the court states asfollows at paragraph 71:

In order to explain the standard as clearly as possible to the jury, it may bepreferable to phrase the standard of causation in positive terms using a phrasesuch as "significant contributing cause" rather than using expressions phrased inthe negative such as "not a trivial cause" or "not insignificant". Latin terms suchas "de minimis" are rarely helpful.

41 Causation is a question of fact and in making a determination, all the evidence must beconsidered, not only that of the medical experts, in this case Dr. Johnson. The court is entitled toconsider all of the evidence and accept or reject any part of it. See Smithers, supra and R. v. Shanks,[1996] O.J. No. 4386.

42 As noted above, pathologist Dr. Johnson indicated that the tear or rupture to the artery at thebase of the brain which caused the hemorrhaging leading to death, was the result of a sudden violenttorsion or rotation of the head. It was his opinion that the torsion was caused by a blow to the rightside of the upper part of the neck at the back of the right ear. The blow administered by Mr. Tabbarawas to that area of the neck and is corroborated by a small recent internal bruise identified by Dr.Johnson during the autopsy. Dr. Johnson also indicated that the blow itself or as he termed it, themild to moderate blunt force trauma, would not have caused the rupture of the artery. In his opinionit was the sudden torsion of the head which caused the arterial rupture.

43 Defence counsel argues that there are a number of other reasonably possible alternative causesof the sudden violent torsion of the head which raise a reasonable doubt as to Mr. Tabbara's blowbeing the cause. As noted above, Dr. Johnson indicated that it was unlikely but possible that thefollowing scenarios might cause the kind of torsion necessary to rupture Tim Wojna's artery: 1) asudden turn of the neck as an evasive maneuver; 2) an exchange of blows with someone; and 3)breaking of a fall. Dr. Johnson was not able to rule out these possibilities. The medical evidence

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was not capable of absolute certainty. It is therefore necessary to carefully examine the evidence inorder to determine two things:

1. Is it reasonably possible that the actions postulated by defence counseltook place? and

2. If so, it is reasonably possible that one or more of such actions caused asudden violent torsion of Mr. Wojna's head?

44 I have divided the confrontation into segments as recorded on the video made outside the SINBar that evening. During the course of the confrontation I have identified five interactions.45 The first interaction takes place between Brian Herbert and Tim Wojna at 2:55:03 when theyare face to face. Mr. Herbert steps towards the right side of Tim Wojna and raises his right hand. Itis not possible to see either Brian Herbert or Tim Wojna's shoulders or head area. However, TimWojna's lower body remains stationary and he keeps his hands in his pockets. Mr. Herbert's righthand comes down and he moves off a bit to the right while Mr. Wojna remains standing in the sameposition with his hands in his pockets. Given: the lack of movement by Tim Wojna; the fact that hishands remain in his pockets and his hat remains on his head and the lack of reaction from any of theother witnesses present, I do not find it a reasonable possibility that any form of blow was struckwhich could cause a sudden violent rotation or torsion of Tim's head.

46 Approximately four seconds later at 2:55:07 Diar Hosseini steps forward and takes a broadswipe with his left arm towards Tim's upper body. Again Tim remains stationary with his hands inhis pockets. Mr. Hosseini lowers his left arm and knocks Jihad Tabbara's cigarette out of his righthand. Diar then raises his right arm and with his hand open swipes towards Tim Wojna's upperbody. Tim's upper body moves slightly to his right but his feet remain in the same position; hishands remain in his pockets and his hat remains on his head. Once again, I do not find it reasonablypossible that a blow was struck to Tim Wojna at that point in time. His lower body remainsmotionless, his hands remain his pockets and the only movement is a slight motion to the right. Thiscould be an evasive move but I do not find it reasonably possible that that such a move caused asudden violent torsion of Tim's head. There is simply no evidence to support this.

47 Interaction #3 takes place at 2:55:09. Again Tim Wojna and Brian Herbert are face to face.Brian Herbert raises his right hand, Tim turns his upper body a bit more but his lower body remainsstationary. He takes his left hand out of his pocket. It is not possible to see his head. The cowboy hatfalls directly behind Tim. He takes a step back with his right foot and then his left foot, hitting thehat which lies on the ground between his feet. Brian Herbert does not remember this interaction.Dixie Duggan observed Mr. Herbert hit the front brim of Tim's hat with an open hand in an upwardsmotion. He acknowledged that on discovery he thought there might have been some contact withTim's head. I find it reasonably possible that there was some contact with Tim Wojna's head.

48 Would the knocking off of the hat cause a violent rotation of Tim Wojna's head? It is of notethat when Tim steps, he steps directly backwards and the hat lands directly behind him. Therefore, itis a reasonable inference that any contact made was to the front of Tim's head and that anymovement of his head would be from front to back. Dr. Johnson testified that a front-back or anexaggerated nod motion would not be the kind of violent torsion leading to an arterial rupture. Tim'shat did not fall to one side or go flying, it simply landed directly behind him which is consistentwith the description given by Mr. Duggan of an upward motion with an open hand. I find it is Mr.

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Herbert's action that causes the hat to fall off but I do not find it a reasonable possibility that thiskind of action would cause a sudden violent torsion of Tim's head, as described by Dr. Johnson.

49 Immediately after Brian Herbert knocks Tim Wojna's hat to the ground, Interaction #4 takesplace. Tim becomes more aggressive and lunges toward Brian with his right leg and his left armcocked at the elbow. Tim steps back, lowers his left arm and then raises and lowers it again. Helunges forward a second time with his right foot and then steps back. Brian Herbert steps forwardwith his right foot, kicks Tim's hat and then steps back. By this time, Benoit Boulais was on thescene and testified that Tim was acting aggressively and throwing fake punches or elbows. Mr.Boulais did not see Tim come into physical contact with anyone nor they with him. Dixie Duggandoes not recall Tim lunging back and forth or throwing elbows, nor does he recall anyone elselunging towards Tim and kicking the hat. Although Brian Herbert cannot recall this interaction withTim Wojna, he indicated that he could confidently say he did not strike a blow to Mr. Wojna.Therefore, although there was a lunging back and forth, there is no evidence of any physical contactor an exchange of blows. I do not find it reasonably possible on the basis of all the evidence thatblows were exchanged or that the interaction between Brian Herbert and Tim Wojna was such as tocause a sudden violent rotation of Tim's head.

50 In addition, I note the following:

1. None of the witnesses, including Mr. Boulais and Mr. Duggan observedany other hits or blows to Mr. Wojna that evening, either before or afterMr. Tabbara's punch.

2. All the interactions between Mr. Herbert and Mr. Wojna and theinteraction between Diar Hosseini and Mr. Wojna were face to face. Thereis no evidence of any contact to the side or the back of the head.

3. There were no injuries to Mr. Wojna's head other than the recent, small,internal bruise on the right, upper back of the neck area identified by Dr.Johnson. The injury to the right side of Tim's lower lip is attributed by Dr.Johnson to the medical intervention. There were no other external orinternal injuries to his head.

4. After the last interaction with Mr. Herbert, Tim Wojna turns and begins toback away, bends over and grabs his hat, sweeps his hat off the groundwith his right hand, turns to his right and begins walking away and puts hishat on his head when he is punched by Mr. Tabbara. At no time does helurch, stumble, sway or show any other signs of distress.

5. The blow by Mr. Tabbara was completely unexpected. Tim was unawareand did not have time to brace himself, as he did in his interactions withBrian Herbert. His muscles were floppy as a result of alcohol consumption,according to Dr. Johnson, making it easier to produce violent torsion witha lesser degree of force.

6. Although it was put as a possibility to Dr. Johnson, defence counsel did notargue that there was a violent torsion to Tim's head in the course of his fallbeing broken when he collapsed to the ground. The evidence of Mr.Duggan and Mr. Boulais is that he went down slowly, onto his side and laydown on his back. The evidence is that it was a gradual fall or collapse asopposed to a sudden, abrupt fall from a standing position to the ground.

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Again I do not find it reasonably possible that his fall or the breaking of hisfall caused the sudden violent torsion of his head.

7. When Brian Herbert and Jihad Tabbara returned to the Elgin Street Dinerthere was no discussion of any fight, exchange of blows or indeed anyphysical contact between Tim Wojna and anyone other than Mr. Tabbara.

Conclusion51 In conclusion, I cannot find on all the evidence before me any reasonably possible explanationfor the sudden violent torsion of Tim Wojna's head other than the blow inflicted by Mr. Tabbara.Although other possibilities cannot be ruled out medically, they can be ruled out based on thefindings of fact.

52 I am satisfied beyond a reasonable doubt that the only reasonable inference to be drawn fromthe proven facts is that the punch by Mr. Tabbara to the right back upper neck area of Tim Wojnacaused a sudden violent torsion of his head, thereby tearing a small artery at the base of his brain,causing hemorrhaging within and around the brain, which led to his death. Mr. Tabbara is foundguilty of manslaughter contrary to s. 236 of the Criminal Code, supra.erbHhJ.A. BLISHEN J.

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