Courtesy of a concerned member of the legal community. This friend previously wrote a great blog post dissecting JY’s response to Amy Hamm’s lawsuit.
Download a full copy of JY’s response here.
Introduction – Originally filed Mar 9, 2020
Two reporters from The Rebel, Keean Bexte and David Menzies, have pending actions against JY for battery and assault. In this brief, I will generally just use the language of “assault”, except where there is an important legal distinction. Each reporter was assaulted while trying to interview JY on video, though on separate dates.
The relevant law is basically the same for both incidents, but I will note where it differs. Unlike the defamation case brought by Amy Hamm, these cases are both in BC Provincial Court (Small Claims Division). The law itself isn’t different and the judges are equally capable. If anything, Provincial Court judges are better able to deal with our “exceptional” parties in this case.
Battery and Assault
These terms have specific and distinct meanings. I will only address them as civil causes of action because this is a civil lawsuit (and because I’m not a criminal lawyer). The essence of battery is that the defendant directly and intentionally interferes with the bodily integrity of the plaintiff without consent. Assault doesn’t require touching the plaintiff, but just an immediate fear of harm. You can sue even if you don’t suffer damages, though this is complicated for assault.
The basics: Battery is hitting someone. Assault is making you fear them hitting you. I won’t bother with going through each element for each case, because the videos are clear that JY committed battery/assault.
JY seems to be attempting a defence of self-defence. This likely won’t succeed because the intention of the reporters were clear in both cases: to report on JY (and rile him up a bit). No reasonable person would think Bexte or Menzies were about to physically harm JY or Mama Yaniv. That JY was “sexually assaulted” (HE WASN’T) before battering Bexte is irrelevant even if it were true.
JY has a relatively decent chance at mitigating some of the damages through a defence of provocation. The test is whether the provocation would cause a reasonable person to lose self-control immediately before the battery. Menzies asking whether JY was molested by his mother could fall into that category. I don’t think Bexte calling him “Jonathan” rises to that level, but a court might disagree with me.
Defences of provocation only reduce damages, but they don’t eliminate liability. BC is unlike most provinces in that provocation also reduces general damages (pain and suffering) in addition to aggravated and punitive damages. However, it doesn’t reduce specific damages, such as physiotherapy costs. In BC, a 25% discount is average. Costs are still awarded at the normal scale for small-claims court, which are very limited.
Regarding the actual amount of the damages, Bexte and Menzies are just shooting for the $35k maximum in small claims. They’ll probably get less when/if they succeed. Good luck collecting though!
JY filed amended his counterclaim on March 16, 2020. It’s analyzed below.
JY starts the counterclaim with three paragraphs that disclose no cause of action beyond “Menzies and Bexte are mean to me.” The third paragraph is unhinged, but I think JY is complaining about being referred to as Jonathan in the legal proceedings.
There is no stand-alone tort of harassment in BC, so alleging harassment isn’t particularly useful. Paras. 5 and 6 might be a trespass, but it would be up to the strata corporation to sue.
Paragraph 7 is the comical pièce de résistance. Asking a person charged with possessing illegal weapons whether they have weapons on them is not inappropriate nor intended to spark conflict. If anything, it’s intended to avoid conflict with an armed person. I also do not know why JY pleaded, as a material fact, that JY was wearing a sun dress with an attached medical device. At least one medical device was not securely attached to JY, as JY was captured on video chasing down his walker like a transvestite Usain Bolt.
Misgendering someone actually is not hate speech, which has a very specific definition in the Criminal Code. Even if the Canadian Human Rights Act prohibited misgendering someone outside of an employment/services context, it would be of no help to JY. The federal legislation only applies to areas of federal jurisdiction. JY might have more luck in a lighthouse or nuclear power plant.
Paragraphs 9 to 34 set out a claim for defamation. Actions for defamation must be brought in BC Supreme Court, not in small claims. This is a fact that JY acknowledges at para. 22. JY says that it’s not defamation but rather harassment, which again is not a stand-alone tort in BC. JY proceeds to copy and paste several paragraphs setting out the law of defamation. He tries to use “harassment” instead of “defamation” but is quite inconsistent. I am very confused by the logic of drafting a pleading this way.
In para. 35, JY claims to have copyright over photos taken by Menzies. Menzies took the photo, so he holds the copyright. JY is trying to claim an invasion of privacy. This is arguable, though unlikely to succeed. Furthermore, actions under the Privacy Act have to be brought in BC Supreme Court, which is hopefully enough of a deterrent to JY bringing an action.
Paragraphs 36-41 are again claiming defamation, which cannot be heard in BC Provincial Court. There are also myriad defences available to Menzies/Bexte.
Paragraphs 42-45 aren’t a counterclaim. These should be in the response, as they are trying to raise a defence of provocation or of self-defence. They’re also not exactly true, which will be apparent when the video goes into evidence.
Paragraph 46 is true, but I think that speaks more to how poorly Canadian law enforcement treats the media in this country. Compare that with the Little Princess treatment JY seems to expect in para. 48. I assume this is a gross exaggeration of the actual advice of police. If JY wants to also sue Sheila Gunn Reid (para. 50), she needs to bring her in through a third-party claim.
The counterclaim is in essence a claim for defamation, which cannot be made in BC Provincial Court. If he wants to sue for defamation, he can do it BC Supreme Court. There also seem to be some human-rights elements in there, but the BCHRT isn’t taking his calls at the moment.
Merriam-Webster defines “unhinged” as “upset, unglued, especially mentally deranged”.
Can you think of a more fitting term for JY?