Was the fatal blow really manslaughter?

Robert William Hiel, age 42, a homeless man who was receiving treatment for drug addiction lived at the Salvation Army hostel in Windsor, Ontario off and on, was walking down an alley during the very early hours of April 16, 2008 with one of his friends walking ahead of him. Robert stopped at a car parked in the alley but he couldn’t see inside the car because the windows were tinted so he walked around the car and opened the passenger door.

At this juncture of this piece, I have to conclude that if the car had been driven on the right side of the alley and then was parked on the same side of the alley, the passenger door would be against the wall of a building with just enough space to open the passenger door.

I am however forced to ask this rhetorical question; ‘Did he go to the passenger side of the door so that he could reach into the glove compartment?’ I am inclined to believe that he did, otherwise, why did he try to look inside the car in the first place to see if anyone was inside the car? It isn’t terribly unusual to find a couple inside a car in an alley sometime after midnight?

As it turned out, there was a man and a woman inside the car. It doesn’t take much of an imagination to figure out what was going on in that car at that time. Mark Curtis, 22, a St. Clair College student was furious. I have assumed that it was his car so he would have been sitting in the driver’s seat when he may have been rudely interrupted in the middle of his moment of joy. He went around his car and found the man who had opened his door, crouched between two cars. He was probably hiding from the angry man who just got out of his car.

It is alleged that Mark punched Robert in the nose and mouth who in turn then immediately fell to the ground. Then Mark climbed back into his car and drove his supposed woman friend away from the scene.

When the police came onto the scene at 1:30 a.m., Robert was unconscious and bleeding heavily from his mouth and nose. Mark was later arrested and charged with assault causing bodily harm. After Robert died around six in the morning, the charge against Mark was increased to manslaughter.

The police have footage from nearby closed-circuit cameras, and a statement from the man who was walking with the deceased. I don’t know what is in the video footage but the man who was walking with the deceased didn’t see Mark strike Robert. It seems that he heard a thud and then saw his friend on the ground and Mark’s car being driven away. However, other witnesses also saw something but I don’t know what it was they saw.

Because the man who was with Robert only heard a thud, I have presumed that no conversation took place between Mark and Robert before Mark struck him and Robert fell to the ground.

I have also presumed that Robert must have got up and was standing before Mark struck him in the face. This is based on the premise that a man intending to strike another while the other is crouched between two cars is hardly going to stoop down to strike the other man. If anything, he would kick him in the face.

Now what is really interesting is that Robert’s friend didn’t hear any words being exchanged between Robert and the man who struck him. I make that presumption because an angry man’s voice would be heard in a quiet alley in the early hours of the morning if Mark chose to speak. Since Robert having no reasonable explanation to give Mark as to why he was prowling around his car and opening the passenger door probably chose to remain silent.

What is puzzling was why Mark chose to remain silent. Normally, a man in his situation would yell, “Why were you opening my car door?” I suspect that the real reason why he said nothing before he struck Robert was that he was so incensed; he simply struck Robert in his face.

He should have asked Robert why he opened the door. For example, wouldn’t any man walking by a car at night open the passenger door if he heard a woman moaning inside? She could be giving birth to a child or she could have been stabbed and left to die. Now I realize that such an explanation would be hard to believe, especially since Robert’s friend didn’t hear such sounds coming from the car when he passed by it. In fact, there may have been no sounds at all coming from the car because the two inside may have been doing nothing other that simply talking quietly together and their voices wouldn’t be heard above the distant din of street noises.

Unfortunately Mark didn’t ask any questions and striking Robert in the face because he is angry isn’t justified under any circumstances. If Robert hadn’t died, Mark would only be charged with assault casing bodily harm. Mind you, that charge is also a serious charge to face.

The legal term, ‘bodily harm’ as defined in the Criminal Code of Canada means, ‘any hurt or injury to a person that interferes with the health or comfort of the person and is more than merely transient or trifling in nature.’

If you raise your fist and move it towards another person but don’t hit him, that constitutes an assault. That is because you have alarmed him into believing that he is going to be hit. And yet, if you push a man aside because he is blocking your way, it isn’t considered an assault because the pushing of his body is too trifling to be considered an assault. Further, if you accidentally bump into another person and he falls to the ground and strikes his head on the pavement and is severely injured, that isn’t an assault because you didn’t have the intent to strike him in the first place.

Breaking a man’s nose or knocking his teeth out is definitely assault causing bodily harm. But then so is merely causing his nose or the gums of his teeth or his lips to bleed.

While people are certainly entitled to protect themselves or their property, each case is dependent on the circumstances as to whether subsequent action taken is justified.

In my opinion, Mark didn’t have the right to strike Robert. If anything, he could have made a citizen’s arrest and arrested Robert for breaking into his car. Breaking into the car also means opening the car door without the permission of the owner. If Robert resisted the arrest and Mark had to use force, the force he would be permitted to use would have to be reasonable. If Robert threw some punches at Mark, then Mark would be in his rights to strike back providing that in doing so, he didn’t pummel Robert continuously with his fists.

If he struck Robert once in order to protect himself from Robert’s fists, and Robert fell to the ground and struck his head on the pavement and died as a result, Mark couldn’t be charged with any offence because he was defending himself.

We haven’t been apprised about the autopsy reports yet so I want to make some more assumptions. There can be four reasons why Robert could die as a result of Mark’s one-punch assault on him. (if that is what occurred)

1. Mark’s fist hit Robert’s nose upward with such force, that the two nasal bones (which forms the bridge of the nose) were thrust into Robert’s brain. This would cause bleeding inside the brain and the resulting swelling would eventually bring about Robert’s death if the doctor’s couldn’t reduce the swelling that was exerting pressure against his brain.

2. Robert fell backwards after being struck by Mark and struck the back of his head against the pavement or the bumper of the other car. The injury could come about as a result of instant deceleration. That occurs when the brain is going downward as the body falls and then is driven towards the back of the skull that has suddenly stopped moving due to instant deceleration when the skull hits the pavement. The result is referred to as ‘concussion’. Minor blunt head injuries may involve only symptoms of being ‘dazed’ or brief loss of consciousness. They may result in headaches or blurring of vision or nausea and vomiting. That is not what happened in Robert’s case. Severe blunt head trauma involves a loss of consciousness lasting from several minutes to many days or longer. Seizures may result. The person may suffer from severe and sometimes permanent neurological deficits or may even die. In Robert’s case, he died.

Now it is also possible that if Mark struck Robert one blow to his face, Robert’s head would have suddenly been thrust backwards with such force that his brain would have remained still for a fraction of a second until the frontal lobes of his brain were hit by the front part of his skull as it was propelled backwards. That too would cause severe blunt head trauma.

3. Robert may have had a heart problem and the blow to his head or to his chest could bring about a fatal heart attack.

4. Robert may have suffered from a previous head injury that was accelerated as a direct result of Mark striking him in the head and this acceleration of Robert’s previous injury could have caused Robert’s death.

As I said earlier, we will know better after the autopsy report is made public.

Meanwhile, Mark has been charged under the Criminal Code with manslaughter. Under the Criminal Code, manslaughter is defined as a ‘culpable homicide’ that is not planned or deliberate. Manslaughter is the charge when a killing is not intentional, but the person causing the death was negligent as to whether death occurred. For example, if you continuously punch a man in his face, you would be considered by the court as being negligent about the danger you put the deceased man’s life into. The maximum penalty for manslaughter is life imprisonment although I don’t know of anyone being sentenced to life in prison in Canada for manslaughter. It could happen however if this was his second or third conviction for manslaughter or he was previously found guilty of murder. In any case, Mark won’t be sentenced to prison for life, since he has a clean record.

The real issue that will be before the court is whether or not Mark intended to kill Robert while in an uncontrollable rage or whether or not he didn’t give a damn if Robert died as a result of being struck by Mark. These are difficult issues the court has to deal with unless there is evidence that Mark pummeled Robert continuously in the face and head without any consideration of whether or not Robert would eventually die from the blows.

Let me say from the onset that if Mark hit Robert once in the face and Robert fell down and struck his head against the pavement; that would constitute manslaughter if he wasn’t first struck my Robert. However, an accused can only rely on Section 34(1) of the Criminal Code only if he was unlawfully assaulted ‘without having provoked the assault in the first place.’

For example, if Mark approached Robert with his fist upraised to strike him, that would constitute an assault and Robert would be justified in striking Mark to defend himself from being struck by Mark. Then if Mark struck Robert and Mark died as a result of that blow to his face, it would be manslaughter.

Here is what I believe may have happened. I don’t think Robert struck Mark first because if he had, there would probably be some verbal confrontation going on between them after that first blow was struck. Further, a man crouched between two cars is in fact hiding and is trying to avoid any physical confrontation with another man. If he was confrontational, he would have called on his friend to assist him. This he did not do. Further, if he feared that Mark was going to strike him, he would no doubt try to scare him away by yelling, "Stand back or I will hit you!" In fact, I believe that he had little opportunity to call out. This could mean that Mark was dressed when he stepped out of his car, immediately spotted Robert and when the latter got up to flee, Mark struck Robert in the face before he had a chance to turn around and flee. Mind you, this is all supposition.

I am not convicting him and neither are the police. Their job is to arrest and charge the man, not try him and convict him. But it would appear that they had enough reason to believe that Mark’s actions were the cause of Robert’s death and they feel that that cause of death was manslaughter.

If Mark is convicted of manslaughter and sentenced to a term of imprisonment, he could seek to have his sentence of imprisonment reduced on the grounds that the circumstances of the offence and his personal circumstances are ‘exceptional circumstances’ which did not require the imposition of a prison term but instead justifies a suspended sentence because the prison sentence imposed was unfit.

Obviously, simply being angry doesn’t come under the heading of ‘special circumstances’. Even losing one’s self-control doesn’t come under the heading of ‘special circumstances’. However, if there had been a series of rapes going on in Windsor at that time and they were taking place in parked cars in alleyways and Mark truly believed that Robert was the serial rapist and struck him to knock him out so that he could tie him up, that may give the trial judge room for consideration. After all, a man who prowls in alleyways at night peering through car windows may very well be a serial rapist. Unfortunately in this particular case, Robert wasn’t a serial rapist. He was probably a down and out bum looking for easy cash and hoped to find some in the glove compartment of an unlocked car.

In Regina v. Johnny, the British Columbia Court of Appeal dealt with the issue of ‘special circumstances’ with respect to the sentence for manslaughter. It said in part;

“That leaves for consideration whether the circumstances of the appellant are so exceptional as to require the imposition of a suspended sentence. His previously unblemished record and general good behaviour in the community and his expressions of genuine remorse all indicate that rehabilitation, protection of the public and specific deterrence do not require the imposition of imprisonment. I am unable to accept, however, appellant's counsel's submission that these considerations show that the public will benefit if the appellant is not required to serve a prison sentence or that the principle of general deterrence should yield to these considerations.”

What the court was saying was that although there was no need to imprison Johnny because he needs to be deterred from doing something like that again; the court was more concerned about the need to deter others from doing the same thing.

Many years ago in England, the Hon. Sir Henry Hawkins, one of the Justices of the Queen's Bench Division of the High Court of Judicature, and, owing to the severity of his sentences, was known as the "Hanging Judge. One day, he sentenced a man to death for stealing one of his neighbour’s sheep. The poor man, upon hearing the sentence, cried out, “It was only a sheep.” The judge replied, “I am not hanging you for stealing a sheep. I am hanging you so that others will not steal a sheep.” Later, the man was hanged as deterrence to others of his own kind.

In summary, I believe that Mark will be convicted of manslaughter and will have to serve some time of imprisonment. Of course, my belief is premised on what little I know of the case at this present time. As we all know, cases are hinged on evidence and as we learn more of the facts of the case, I may very well change my opinion.

I base my summary on my training in forensic sciences at the Forensic Science Centre in Toronto during 1974 and 1975; my training in abnormal psychology and my experience as an investigator who investigated murder and manslaughter cases for trial lawyers representing accused persons charged with murder and manslaughter. In every case I investigated, I was correct in my summaries. This may however be a case where I am wrong. Only time will tell. I will keep my readers abreast of new information in this case when I become apprised of it.

Meanwhile, I want to tell you of a recent decision in which an accused person was rightly convicted of manslaughter.

Outlaw biker Francesco (Cisco) Lenti, 59 was offered full membership in the Hells Angels in June 2006, in a meeting held in a strip club north of Toronto. Lenti rejected the offer to join the Hells Angels and the Hells Angels then decided to murder him. Three members of the Hells Angels were involved in the murder plot. Police alerted Lenti to the murder contract on his life and Lenti began carrying a nine-millimetre handgun.

On the morning of December 2, 2006, bikers Buchanan, Desroche, Carnegie and Verrelli entered the Club Pro strip club, where Lenti worked as a bouncer. Buchanan yelled profanities at Lenti because he was trying to organize for the Bandidos club in Ontario. Shortly afterwards, Buchanan struck Lenti in the face giving him a black eye. Lenti then drew the handgun, which was hidden in his belt and opened fire on the four bikers, firing seven shots in six seconds. At no time during the incident were any of the Hells Angels seen to be in possession of or to produce a firearm. Lenti later told police that he believed the Hells Angels were going to kill him because outlaw bikers don't simply strike someone once and then walk away.

After Buchanan was shot and fell to the floor, Lenti, while leaving the scene, turned towards the prostrated man and fired a second shot into him to make sure that he was dead. Lenti pleaded guilty to manslaughter for killing Buchanan and Lenti also pleaded guilty to aggravated assault for shooting Scott Desroche, Carlo Verrelli and Dana Carnegie.

Lenti was right to be concerned that he may very well be killed by Buchanan after striking the man in the face but Buchanan was unarmed when he went into the strip club so in effect, Lenti shot to death, an unarmed man. It was only because of the heat of the moment that he wasn’t convicted of murder.

A man who is under a threat of death has an option to move out of the area and in this case, Lenti would be have been quite right to change his name and literally disappear. Instead, he chose to arm himself and remain working at the strip club knowing that he would have to shoot it out when his killers came for him. It just so happened that on the day of the shooting, the three men weren’t visiting him to kill him. The manslaughter and aggravated assault convictions on April 14, 2008 were proper in this particular case.