IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120217

Docket: 13321

Registry:
Nelson

Between:

Dylan Alexander
Rhys Plishka-Humphreys,

an infant by his
litigation guardian, Christine Renee Plishka

and the said
Christine Renee Plishka

Plaintiffs

And

Daniel Robert
Bolen and James Christopher Ricard

Defendants

Before:
The Honourable Mr. Justice McEwan

Reasons for Judgment

[1]            
The plaintiff, Dylan Plishka-Humphreys, brings an application for
summary judgment on the issue of damages for assault and battery against the
defendant, Daniel Bolen.

[2]            
He takes the position that liability has been conclusively proved by
means of a  certificate issued by the Court Registry in Nelson showing that on
September 21, 2005 at Nelson, British Columbia, the defendant was
sentenced for the offence of aggravated assault on the plaintiff, having pled
guilty on June 29, 2005.

[3]            
At the summary judgment hearing in the civil action before this Court,
the defendant denied liability on the basis of an affidavit setting out the
following assertions of fact:

3.      On
July 2, 2004, I was driving my automobile westbound from Nelson in the
direction of Castlegar, James Ricard was my passenger. It was the day before my
wedding to Tanisha Bolen, my wife.

4.      As I
was driving in the dusk, the passenger side window of my truck shattered as if
by a bullet. I was travelling the posted speed limit of 70 km per hour at the
time.

5.      I
was extremely concerned that someone had fired a bullet or thrown a rock at my
car and I stopped and got out to investigate. I wanted to find out if the
projectile had been launched purposefully. I was also aware that shortly before
this date, personal injury and even death had been cause in the lower mainland
by reason of persons throwing or dropping rocks on passing cars. I thus
considered this to be a public concern.

6.      Part
of my concern was also related to my automobile insurance and whether or not a
third party was responsible for the damage. I had no intention of becoming
involved in a physical confrontation with anyone when I exited the vehicle.

7.      After
I got out of the vehicle and looked around I became suspicious that persons
unknown were on top of the rock bluff near the roadside and I walked up the
slope to investigate.

8.      When
I got up to the top of the bluff, I heard noises like branches cracking and
rustling of leaves, as if a number of people were hidden in the bushes.

9.      I
advanced cautiously. The possible perpetrators of the property damage to my
vehicle were obviously hiding themselves in order to avoid detection and in
order to avoid paying for my window. Given that I was not aware of the
number or character of the perpetrators of this mischief, I was fearful for my personal
safety and I was on my guard.

10. At
no time did I utter any threats. I only said to the perpetrators (who were
hiding) that they should come out and show themselves.

11. With
no warning, and occurring very suddenly, the Plaintiff jumped out while holding
an object in his hand that I recognized to be a hatchet. The plaintiff was
about four feet from me and in the near darkness I could not tell his age. He
appeared to be similar in stature to myself. I was unarmed.

12.    Given
the circumstances, and the lack of verbal response to my entreaties to come out
of the woods, I perceived his sudden approach to be threatening.

13.    As
the Plaintiff proceeded toward me, I raised my fists. Despite taking that
defensive stance, he continued to advance. He said nothing.

14. In
self defence, I struck the Plaintiff twice in the head. He fell down. The
Plaintiff made attempts to fight back and to get up and therefore I struck him
twice more. I used no more force than I considered necessary in the
circumstances.

[Emphasis added.]

[4]            
The defendant also deposes that the circumstances of his guilty plea are
such that he ought to be permitted to conduct a full trial in this civil proceeding:

22.    After I
was charged, I retained legal counsel [Lawyer #1] who advised me to plead not
guilty. He told me that given the circumstances of these events, I was acting
in self defence. I agreed with that proposition.

23.    A trial
date was set and then three weeks before trial [Lawyer #1] withdrew as my
counsel. He provided no explanation, would not return any of the funds that I
paid him, and simply suggested that I get other counsel.

24.    I then
went to see [Lawyer #2] and retained him. He then suggested that I plead
guilty. I told him that I did not consider myself guilty. At this time I had no
more money for a third lawyer and therefore I decided to plead guilty. I
thought that the matter would turn out better for me if I plead guilty than if
I attended at a trial to defend myself.

25.    I
regret having done that because I did not ever consider myself to be guilty of
the crime that I plead to. I received 90 days jail intermittent time, which
took about a year to serve. I was put on a 10 year firearms prohibition,
despite never having owned a gun in my life. I was required to give a DNA
sample. I was put on 30 months of probation during which time I was required to
take a number of courses. I took all of them and completed my probation. I also
was required to complete 150 hours of community work service which I did by
delivering meals on wheels to elderly people in the community. I was also put
on a probation condition to abstain from the consumption of alcohol despite the
fact that alcohol played no role in this incident and despite the fact that I
rarely drink alcohol.

26.    I have
no criminal record other than the conviction that arises from this incident.

27.    I
wished to appeal the sentence after it was imposed but I had a two month old
son, a new wife, and no money for a lawyer.

28.    I
disagree with much of the facts and tenor of the evidence of the Plaintiff.

29.    Given all of the above,
I wish to have the opportunity to have the evidence tested in
cross-examination. As such I have instructed my lawyer to request that this
matter not be heard as a summary trial and rather be heard as a full trial.

[5]            
As I earlier noted, the plaintiff relies on the Certificate of
Conviction. The only other evidence he tendered was a personal affidavit and a
police report prepared shortly after the events of July 2, 2004. The hearsay contained
in the police report is I think, inadmissible. It is not, in any event, the
best evidence. I advised counsel that any dispute over the content of the guilty
plea could only be reliably determined by looking at the transcript. It was
ordered, and is now in hand.

[6]            
The facts read into the record on September 21, 2005 by Crown Counsel in
the defendant’s presence included the following:

The facts revolve around an evening on July 2nd, 2004. This
was a Friday evening; the Canada Day had been the day before, so essentially
the first long weekend of the summer after school got out.

The facts revolve around four boys: Dylen Humphreys, his —
he was 13 years of age at the time, having just turned 13 on May 26th; Arie Van
der Holt, who was 12 years of age at the time; Galen Miresko [phonetic], who
was 13; and Benjamin Jones, who was 12 at the time.

The four boys were friends. They had all just completed grade
7 at Trafalgar.

Present in court today, so that Your Honour knows, is Dylen,
seated between his parents, and I think Benjamin was here a little earlier, but
he’s not here now.

As I said, this was a Friday night. The plan that the boys
had was to sleep over at Arie’s house. Arie lives in Rosemount, fairly close to
— fairly close to the highway; Lower Rosemont, I guess you could call it. So
Dylen, Galen and Benjamen were over at Arie’s earlier in the evening intending
to sleep over. After dinner, at about 7:30 in the evening, while it was still
light, it being early summer, they decided to go to the bluff area located as
— just off the highway as one leaves town — leaves Nelson, heading towards
Castlegar.

Now, the bluffs are the area that are found within the wedge
created by the highway and Government Road. Government Road, coming up from the
Ford dealership and meeting the highway. There’s a wedge there. And the bluffs
are fairly steep against the highway. There’s a flat area on top and then they
drop off again as a steep cliff on the Government Road side. And as I say, they
form a bit of a wedge.

The bluffs are actually accessible by climbing up on to them
on the highway side of the bluffs, at the most easterly corner.

Now the boys went there to do a couple of things. They went
to this area to do a couple of things. There’s some bush area off the bluffs.
They went there to work on a fort. Arie had a fort there. They were there to
work on a fort. For that purpose, Dylen had brought a Swiss Army knife which he
had in his pocket. He had a hatchet tucked in his belt underneath his shirt.
One of the boys, Galen, had a slingshot and some ball bearings. And he took
that item with the boys to this bluff area.

Now eventually the boys reached the top of the bluffs and
they were on the top of the bluffs, overlooking the highway. Galen had his
slingshot, as I’ve said. He took a couple of shots towards the road with the
slingshot. One of the boys was, at that time — there was a couple of them
standing; it appears that a couple were crouched down. One of the boys,
Benjamin, was picking berries at the time. Arie took the slingshot from Galen.
He took a ball bearing. With his first shot he aimed towards a vehicle that was
proceeding westbound from Nelson towards Castlegar. It was a Toyota truck
driven by Mr. Bolen.

He fired the ball bearing towards the truck and hit it. He
hit the passenger — the side passenger window. The window shattered. It first
shattered in the sense of becoming opaque, then cracked, and then shortly
afterwards all the glass fell out of it. And Mr. Bolen had a passenger in his
truck with him, the co-accused James Ricard. The two were friends, having gone
through electrician’s courses together in the area. They were returning to
Castlegar, having just gone through a wedding rehearsal with family in Nelson.
Mr. Bolen was to be married the next day. As I said, they’d had the wedding
rehearsal in Nelson, they’d had dinner, and they were returning to Castlegar
for the evening. Mr. Bolen’s scheduled to be married the next day.

The boys knew, after Arie had shot this ball bearing, that
the vehicle had been struck. Mr. Bolen stopped his vehicle, carried on just
past where the vehicle had been struck. Stopped. Let out Mr. Ricard, and Mr.
Bolen then — and Mr. Ricard, backtracked and Mr. Ricard went down on Government
Road, approached the bluffs from that end. Mr. Bolen went to the highway side
of the bluffs and began to go up on to the bluffs from that side.

The boys retreated and hid. And they backed across the top of
the bluffs to the Government Road side. There’s a little ledge there accessed
by rock climbers; there’s bolts into the rock there. There’s a little hidden
ledge there behind some rocks, and they retreated there, hiding.

Mr. Bolen and Mr. Ricard, as I said, they began to approach
from either side of the bluffs.

The boys hear Mr. Bolen and Mr. Ricard; they can hear
their voices as they approach, and they were uttering threats. The boys could
hear both of them uttering threats along the lines of, “we’re going to kill
you, you, bitch fuckers. We’re going to rip your heads off. We’re from East
Van. You don’t know who you’re fucking with. We’re going to rape you like
little girls.”

Mr. Ricard was to the Government Road side, as I said,
looking up towards the bluffs. He could see the boys. At a certain point he
could see the boys and he could see the boys — in particular, he could see
Dylen well enough to describe him by the colour of his shirt and the fact that
he had a hat on. And he directed Mr. Bolen to where Dylen was.

The four boys had initially gone to the first location on the
edge of the bluffs. Dylen had then moved, and moved from that position to a
position about 10 feet away, behind a bush or a tree. When he moved, he was
seen.

Mr. Ricard called out to Mr. Bolen where they were, and in
particular called out to him the location of Dylen.

From where Dylen was, he then saw Mr. Bolen approaching
over the top of the bluff on the highway side. As he saw him, he revealed
himself. He stood up. He said, “We’re sorry. We’re just kids. We’ll pay for the
damage.” He was wearing shorts, a T-shirt, and a ball cap. At the time he was
approximately five-foot four in height and weighed somewhere between 85 and 100
pounds.

The two were not far apart, it appears, as Dylen stood up
and revealed himself and began to say the things that I said to you. Mr. Bolen
rushed to Dylen and punched him in the head. The first punch knocked Dylen
to the ground. Dylen was aware of a second punch as he was on the ground. At
that point he describes that he felt as if he was out of himself; as if he was
floating in a tank, and lost consciousness briefly.

There followed, after this initial punch, repeated
multiple blows to the head as Dylen lay on the ground. His three friends were
no more than 10 or 15 feet away, still hiding.

Two of them had seen Dylen go to the ground, having been
initially struck, and then they hid. They backed down behind the rock. They
could hear Dylen screaming in pain. They could hear him saying, “God help
me. Please stop. I’ll give you money.”

Arie stood up. He saw Mr. Bolen standing over Dylen punching
him when he stood up. He walked towards Mr. Bolen and said, “It wasn’t him, it
was me. Whatever the damage, I will pay for it.”

Bolen then punched Arie, knocking him to the ground. Arie
rolled to his stomach to protect himself.

In a statement given to the police, Arie told the police that
he was aware of being hit after he went to the ground, to the back and sides of
his head. He was aware of being kicked once in the side by someone wearing a
sandal. He can’t say who was hitting him. It appears that Mr. Ricard had by then
reached the top of the bluff.

Dylen, when he regained consciousness, was aware of Arie
presenting himself and saying, “I was the one who did it. I’ll pay for it,” and
he was aware of Arie going to the ground. He did not see Mr. Bolen punching
him, but he heard Arie going to the ground.

He was also aware of Mr. Ricard being at the top of the bluff
with them at the time. Mr. Ricard having made his way by then from the bottom
of the bluff on the Government side around and up and on to the top of the
bluff.

Arie — I’m sorry, Dylen, told him to leave Arie alone. Both
boys were now on the ground. Dylen was badly hurt and he was bleeding
profusely from his nose. He was crying.

In the course of the assault, from the fright of it, he
had lost control of his bowels and soiled himself.

The two other boys remained hidden, 10 to 15 feet away.
One of the boys overheard Mr. Bolen and Mr. Ricard discuss making it look like
Dylen had suffered the injuries that were now apparent by falling, prior to Mr.
Bolen reaching him.

This was, in fact, the story that Mr. Ricard gave to the
police when the police later attended.

Dylen never fell down. The injuries that he suffered were
at the hands of Mr. Bolen alone.

Both boys were hoisted to their feet. Arie, by Mr. Ricard,
Dylen by Mr. Bolen. They were held by their shirt collars at the back of their
necks. The hatchet that Dylen had with him was noticed at that time under his
shirt, in his belt. It was seized by one of them. It’s not clear — because
they’re conflicting accounts by the boys, who actually grabbed it. One of them
— either Ricard or Bolen — grabbed and began to tell Dylen that he was going
to juvie for possession of a concealed weapon.

The two were marched off the bluff and across the highway,
where Mr. Bolen made a point of showing Dylen the smashed window in his
vehicle.

Police were called. It’s not clear by who. While at the
highway, several persons stopped. One person on a bike. That person was heard
to say, “Leave the kid alone,” and was told by Mr. Bolen to fuck off and mind
his own business.

Police responded to a call of a possible fight and people
screaming. When they arrived, they found Dylen sitting on the ground crying
before Mr. Bolen’s truck, a pool of blood before him. The ambulance was called.

Police spoke with Mr. Bolen and Mr. Ricard, briefly with
Dylen before he was taken to the hospital, and also with Arie. It was some time
before the police learned that the two others — that there were two other boys
present. They were still hiding up on the bluff. The police told Arie to
retrieve them, and he went up the bluff and told them that it was okay; they
could come down now.

As I said, Dylen was taken to the hospital.

Police, in speaking with Mr. Bolen and Mr. Ricard learned
where they had been coming from and learned that Mr. Bolen was due to be
married the next day, and they permitted him and Mr. Ricard to go on their way.

Before Mr. Bolen left, he expressed concerns regarding who
was going to pay for his window. He also asked the police to tell the parents
that he was sorry — the parents of Dylen, that he was sorry that it had
happened.

Dylen was admitted to Kootenay General Hospital. It was clear
that he had extensive trauma to his head. Both eyes were swollen shut, his nose
was damaged, his lower front right tooth was broken off. Mother attended.
Didn’t recognize him. Dylen was in and out of consciousness.

Of greatest concern to the doctors was that Dylen was constantly
vomiting, which was indicative of inter-cranial swelling. They were concerned
that perhaps there was a skull fracture or inter-cranial haemorrhaging, so they
rushed Dylen to Trail Hospital for a CT scan that evening.

A CT scan revealed no skull fracture or haemorrhaging, and he
was taken back to Kootenay General Hospital in Nelson. He remained there for
two nights, getting out on the Sunday morning, the 4th of July.

[Emphasis added.]

[7]            
As to the plaintiff’s injuries the Crown continued:

As between the defence and the Crown, the defence has known
for some time what the evidence was, what the statements of these boys were,
and has taken issue with the number of blows that — described by the boys as
having been struck.

From the Crown’s perspective, I think what we’ve agreed what
the court should be dealing with here is simply the fact that there were
multiple, repeated, forceful blows to the head of Dylen Humphreys, and nobody
can say exactly how many nor does it particularly matter once one gets past one
or two.

…

In addition to the trauma that you see displayed in the
photographs and described in the doctor’s — in Dr. Wilson’s report, Dylen
suffered a major concussion, he had this tooth broken off, as I said. That
tooth was subsequently pulled.

The most long-lasting injury physically that he had was to
his right eye, and it was ultimately — after a great deal of investigation —
determined that he had, in fact, suffered a — what’s known as an orbital
blow-out fracture to his right eye.

The orbit of the eye is the socket within which the eye sits.
It’s a bony structure. It’s attached to the skull. It’s the eye socket.

The mechanism by which that orbit — the eye socket is
fractured in his case, is from the application of force to the eyeball. The
eyeball is forced back into the socket with sufficient force, as the
ophthalmologist described, it’s really a mechanism for protecting the eyeball.
The socket gives way. There are thin bones. The socket gives way, and they
break. The socket breaks. And that’s what’s known as an orbital blow-out
fracture. That’s what happened to Dylen’s right eye and the effect of it was to
cause, for the last year, some significant impairment in his vision. He has
experienced double-vision, a loss of mobility in his right eye such that when
his left eye would move up, his right eye wouldn’t. So the two eyes weren’t
working in sync.

Because of the — as I understand it, there were two aspects,
and I have some more letters to this — from a doctor in a moment to set this
out in more formal language.

The blow-out fracture healed itself but in so doing, there
was increase of volume within the orbit, which meant that the right eye was now
sitting differently within its socket than the left eye was. So they weren’t
sitting at the same plane.

The other problem was that as the orbit repaired itself and
healed, there as some impairment of the muscle which moves the eye within the
bone structure as it prepared its — as it healed.

This is what caused a droopy appearance in his right eye. This
is what caused the impairment in the vision.

The family has for the past year been — it’s been a full
time process trying to determine how Dylen’s eye could be fixed. And they’ve
gone through family doctor to different family doctors. There are three specialists
who’ve been involved in the assessment and treatment of Dylen. A Dr. Mattim
[phonetic], who’s a local ophthalmologist; Dr. Lyons in Vancouver; and finally
a plastic surgeon. Dr. Lyons is an ophthalmologist who specializes in kids. Dr.
Fitzpatrick is a plastic surgeon.

It’s Dr. Fitzpatrick who has most recently been involved with
Dylen’s treatment, specifically having performed an operation on him on July
6th of this year.

And I have two letters from Dr. DeMarco to — I’m sorry, it’s
from Dr. Fitzpatrick — to the family doctor, Dr. DeMarco, again just setting
out the diagnosis, the effect of the damage to the eye, and the proposed
treatment.

So I would seek to have the letters of Dr. Fitzpatrick be the
next exhibit, please.

THE COURT: Yes, Exhibit D.

EXHIBIT 3 (on
Sentence):  Letters from Dr. Fitzpatrick

MR. SEAGRAM:     What I can tell you, Your Honour, is that
the operation on July the 6th, 2005, there were two aspects to it. One was to
free up the muscle which had been impeded — impinged when the socket healed
itself and the second was they actually put an implant behind and his eye to
lift the eye up. So he has an implant below his right eye of some sort.

Dylen and his mother have reported that there has been really
quite a dramatic improvement in his vision, and the double-vision has cleared
up.

The follow-up assessment to
determine really what has been the effect of the operation and where they go
from there, the follow-up assessment is in Vancouver with, I believe, Dr.
Fitzpatrick or Dr. Lyons. I’m not sure. On September 30th, 2005. There’s the
possibility of a further operation in November here in — here in Nelson.

[8]            
Counsel for the defendant was given an opportunity by the Judge to
dispute the facts as read in:

THE COURT:  Any quarrel with the facts, Mr. Brown?

MR. BROWN:  No.

THE COURT:  Thank you.

[9]            
Counsel for the defendant submitted that at the time of the incident the
defendant was on a prescription for mood instability, and was undergoing
counselling. He described the defendant as a “vulnerable personality”. He went
on:

… But the event itself, I think, would shock anyone.
That is —

THE COURT:  For $171.75, he and his partner stalked those
little boys and he beat that little boy absolutely senseless.

MR. BROWN:  He repeatedly hit him, and my client pled guilty,
and I’m troubled by the comment that it was a late guilty plea and I say this. He
acknowledges it. He’s not questioning — he admits it. He’s — as in the
report, disgusted with his own behaviour. He didn’t hide that from Mr. Cannigan.
He’s — and Mr. Cannigan said he’s deeply remorseful. And he doesn’t try to
say he disbelieves him or he’s trying to cover it. That man of that stature
with his court says that about my client. He’s not proud of it, Your Honour.
He’s made that clear to me repeatedly.

I met my client. My client’s communication with his previous
lawyer obviously was non-existent. When I met my client, without the space of
an interview, he wanted to plead guilty. He doesn’t understand the court
process. This man has no criminal record. The trial date was set. He wasn’t
part of that engine that set it. He’s panicking because he wants to plead
guilty. He comes into my office and within a week, I believe my friend and
I — I mean the issue in my mind was not the plea, what should be entered, and
the need for a trial for his purpose. There wasn’t going to be, if I was his
counsel. There wasn’t going to be a trial. He’s guilty.

The issue was I didn’t understand the extent of the injury.
At the time I took conduct of it — and it was unclear to me if I was dealing
with an aggravated assault or an assault causing bodily harm. It became
abundantly clear through my friend quickly wielding to my office medical
evidence, verbal, written, that I was dealing with an aggravated assault. My
client just simply entered the plea to get it over with and I make it clear
that I wanted a communication, frankly, that we weren’t on the — stepping on
the eve of trial with me as counsel entering a guilty plea or even purporting
to run a trial. I wanted to make it clear to my friend, and hopefully to the
victim. And hopefully it was somehow communicated that in the case of this
man’s participation with this victim, he wants to announce his guilt; he is
guilty. There isn’t going to be a trial. The young man — and I know he’s
only 13 — doesn’t have to go through the trial and have some lawyer probing on
— about ball bearings.

The young man, as the Crown very ably put to you, is able to
recognize that you don’t shoot ball bearings at cars. But that’s not why we’re
here. And my client recognizes this. His reaction was wrong.

But I ask you to consider that you’re dealing with a man
who’s not trouble-free. And he’s had his problems growing up, as you see
reference to [indiscernible], what happened to him. You know, and he’s — and
something bubbled to the surface of his mind causing a need for treatment at
age — in his late twenties, and prior to then he didn’t have troubles of the
kind that required medical — but he is a person — acknowledges he’s been
absolutely disgustingly rotten.

But I take issue with my friend when he says there’s a break.
If you have this trauma and the glass shatters, you get out — there’s got to
be in any person a reaction, the adrenalin rush, and he rushes up — and this is
all one transaction — and, again, I’m not trying to justify it. I’m just
saying that he is angry, and he has anger-control problems, and it is a
tremendous trigger for angry — something like — for anger, if that happens to
you. It’s not right. Of course, it’s not right to rush up. But while he’s —
he’s striking Arie, and while it’s ongoing and — I’m sorry in the statement of
Dylen — I’m sorry, I said Arie — in the statement of Dylen, my client is
yelling at him, “I’m going to the cops, your parents. You’re in trouble.”

So you can see that — you know, I don’t know if — it’s not
vigilantism; he’s — I’m apprehending you — but obviously it’s tremendous
overkill. I’m trying not to make light of it but I’m saying, it’s a person
of his character —

THE COURT:  “You bitch fuckers, we’re going to rape you like
little girls.”

MR. BROWN:  Well, my client — there was another individual
involved, and those comments aren’t directly attributable to my client —
attributed. The Crown said those words were uttered. There’s a second person.

My client does acknowledge this: that he was uttering
threats at them, no question. And in terms of — he was going to deal with
them. But coupled with that is you’re going to the cops, your parents, you’re
in trouble. It’s a grab bag. My client’s not even from Vancouver, so the — the
other person was. So this comment about, “East end”, my client’s telling me.
“Well, it’s not something I would impulsively utter because I’m not from
there.” The other individual is from Vancouver, Ricard.

And in any event, look — I didn’t want to take deep issue
with it, because it doesn’t matter if that was the comment or something that’s
around a threatening nature; it’s all wrong. And I’m not trying to justify it.
I’m not. I’m simply asking to consider — it’s not totally random. There’s a
significant triggering event and he didn’t keep his anger under control. It
kept escalating, I agree. And he couldn’t — and he didn’t — do what he ought
to have done, and just grabbed them and dragged them down — or pulled them
down the bank. The striking is wrong; it’s fundamentally wrong. And that’s
why I received the instructions when he acknowledged it and entered the plea.

And I believe with me as counsel, at first reasonable —
that’s why we transferred it to Rossland; just to get on with the process. But
we want to enter the plea; we’re not running the trial. And so we did it in
Rossland quickly and — so I’m a bit — I want to take a tad issue with the
suggestion that it’s a late plea. It’s not with this lawyer. And he wasn’t
having good communication with his previous lawyer, and — and he did want
to deal with it, as he’s dealing with it.

[Emphasis added.]

[10]        
In Franco et al v. White (2001), 53 O.R. (3d) 391, the Ontario Court
of Appeal considered an application for summary judgment in a civil case for sexual
assault which relied on a Certificate of Conviction and a transcript of a prior
criminal proceeding. In that case the defendant had not pleaded guilty, but had
been found guilty by a jury. The Court considered the use that could be
made of the criminal conviction in subsequent civil proceedings. The applicable
law is conveniently outlined in the headnote to the QL version, [2001] O.J. No.
847:

Criminal convictions are clearly admissible in subsequent
civil proceedings. Ordinarily, a criminal conviction constitutes prima facie
proof, but in some cases, the person convicted may be precluded by the doctrine
of abuse of process from contesting the underlying facts. Canadian law has
tended to distinguish between the "offensive" and
"defensive" use of criminal convictions. Where the conviction is used
offensively by the plaintiff to establish the defendant’s liability, as in this
case, the conviction is treated as prima facie proof, subject to rebuttal.
Where the conviction is raised defensively to resist a claim by the convicted
party, the courts have exercised their discretion to invoke the abuse of
process doctrine to preclude relitigation. To apply the abuse of process
doctrine in this case would be inconsistent with this line of authority.

The doctrine of issue estoppel precludes the relitigation of
issues decided in a prior proceeding. Canadian courts, unlike American courts,
have insisted on the existence of mutuality as a precondition for the application
of the doctrine; that is, where one party relies on a prior determination in a
subsequent proceeding, the doctrine of issue estoppel will not apply to
preclude the other party from relitigating the issue unless both parties in the
subsequent proceeding were also parties to the earlier proceeding. The
mutuality requirement prevented the plaintiff, who was not a party to the
criminal proceedings, from asserting the doctrine of issue estoppel to preclude
the defendant from relitigating the issue of his responsibility for the sexual
assault. The mutuality rule has been abandoned in most jurisdictions in the
United States. Under the rubric of "non-mutual collateral estoppel",
a finding against A in an earlier proceeding binds A in a subsequent proceeding,
even if the party relying on the prior determination was not a party to the
prior proceedings. Accordingly, a criminal conviction is preclusive in favour
of the victim in a subsequent criminal action. While the American courts have
abandoned the mutuality requirement, they have replaced it with a healthy
measure of discretion to ensure that justice is done in each case. It has been
pointed out that while Canadian law has adhered to the letter of the mutuality
requirement, the abuse of process doctrine has often been employed to reach the
same result as would obtain under non-mutual issue estoppel. A similarly
ambivalent approach is reflected in the manner in which the prima facie
standard is applied. The effect given to convictions on motions for summary judgment
borders on issue estoppel. It would seem that the law in this area is
continuing to evolve. The rules and categories are supple and take shape in
light of the exigencies of the case. The absence of mutuality does not
invariably preclude giving preclusive effect to a prior determination.

Summary judgment does not follow automatically upon a
criminal conviction if the defendant can show that despite the conviction,
there is an issue to be tried. Summary judgments obtained on the strength
of a criminal conviction have been refused or set aside where the conviction
was vague and it was not clear whether there was a sufficient similarity
between the facts giving rise to the civil claim and the facts underlying the
conviction; where the defendant may have lacked adequate incentive to fully
defend a relatively minor criminal charge and it would be unfair to hold the
defendant to that result when facing the more serious consequences of a civil
action for substantial damages; and where the convicted party had uncovered
evidence not available at his criminal trial. This case did not fall within
those exceptions. The issue in the civil case was identical to that
tried in the criminal case. The defendant was found guilty of the offence
on the criminal standard of proof after a fully contested criminal trial. He
had every incentive and every opportunity to defend himself to the full extent
permitted by the law. He offered nothing new at this stage. The civil trial
would be a re-run of the criminal trial. His evidence was rejected by both the
jury and the trial judge in preference for the evidence of the plaintiff. In
these circumstances, there was no genuine issue of credibility requiring a
trial. The defendant’s request for production of further documents relating to
the plaintiff’s medical condition provided an insufficient basis for refusing
summary judgment. That issue was fully litigated in the criminal proceedings. There
was no genuine issue for trial, and no basis for interfering with the motions
judge’s determination that the plaintiff was entitled to summary judgment on
the issue of liability.

Current Canadian law, through the doctrines of abuse of
process and the application of the prima facie evidence standard, results in
giving preclusive effect to prior determinations in many situations falling
outside the rules of traditional issue estoppel. In this regard, Canadian law
may be seen as paralleling the discretionary approach to offensive non-mutual
issue estoppel in American law. The effect of a prior determination is not
determined through an inflexible application of mechanical rules, but rather on
the basis of the important underlying procedural rules, and an element of
judicial discretion is applied to ensure that justice is done in each case.

[Emphasis added.]

[11]        
The present case differs from Franco in that the defendant is not
asserting a defence that parallels the position he took before the criminal
court. In such circumstances a defendant’s position at least has the virtue of
consistency. Here, the defendant seeks to give an exculpatory version of facts he
has previously admitted.

[12]        
Some of the considerations discussed in Franco emerged in the colloquy
in this case between the court and counsel. A deemed admission to a traffic offence
or a plea to a minor criminal offence might not, in fairness, preclude a defendant
from advancing a defence in subsequent civil proceedings.

[13]        
Here, however, at the sentencing proceeding, the defendant admitted the facts
that the plaintiff alleges in the civil case. He now wishes to contradict those
admissions. This is not a case of a careless plea, or a plea to a vague and
uncertain set of facts.  Nor is it a case where there was a lack of incentive
to dispute a minor charge. It is also not a case of new evidence. There was no
hint or suggestion of a threat from the plaintiff, at the sentencing
proceeding, let alone facts that could be characterized as a form of self-defence.
There was, rather, a submission that he was taking responsibility and acknowledging
the harm he had done. In the context of that hearing it appears that this was
offered as a kind of mitigation.

[14]        
The transcript also contradicts the defendant’s suggestion that he pled
guilty on his lawyer’s advice and not because he considered himself guilty. He
stood in court while his lawyer represented variously that he was “deeply
remorseful”, “wants to plead guilty”, “wants to announce his guilt” …
“recognizes this,” that “[h]is reaction was wrong” or that he wanted to save
the young man from going to trial, and “have some lawyer probing on–about ball
bearings.”

[15]        
The material the defendant has presented does not raise a genuine issue to
be tried. The Certificate of Conviction tendered in this case is roughly
equivalent to proof of a formal admission. There is nothing arising from the
circumstances in which the guilty plea was entered that casts doubt upon the
defendant’s intention at the time, or his appreciation of what he was doing.
There is no ambiguity in the facts that he admitted. The explanation he offers
for sitting through the hearing on September 21^st, 2005 while the
case was, from his present perspective, grossly mischaracterized, is thoroughly
unconvincing.

[16]        
On the matter of quantum, the plaintiff has suggested that he is
prepared to accept judgment for less than the case is worth, just to be
finished with it. I am in no position to assess that, except to say that it is
a matter for the defendant to consider. He is, however, entitled to test the
evidence respecting quantum if he chooses to do so.

[17]        
There will therefore be judgment for the plaintiff on the issue of
liability and a referral to the trial list on the issue of quantum.

“McEwan
J.”