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Black man consented to fight with three whites, defence says

Three white men on trial for the swarming assault of a black man in Courtenay were drawn into the encounter by the man's clear willingness to "pick a fight" with all three of his attackers, lawyers for the accused said Monday.

The attack on Courtenay resident Jay Phillips last July made international headlines after a video shot by a witness, in which the accused can be heard hurling racial insults at Mr. Phillips, was posted on YouTube.

In his closing submissions, defence lawyer Doug Marion said Mr. Phillips "consented" to a three-on-one fight with the men and "could have walked away from this fight if he wanted to.

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"You can see him in the video, he's backing away but his arms are open and he's screaming 'come on!' and then pointing to his chest," Mr. Marion said. "The reality is, that is consent."

Adam Huber, David White and William Rodgers, all in their early 20s, were charged with assault following the July 3, 2009 incident.

According to the Crown, the incident started when one of four men in a pick-up truck disparaged Mr. Phillips' racial heritage as they were leaving the Cliffe Avenue McDonald's.

Mr. Phillips swore and threw a water bottle at the accused, who made a sharp U-turn and drove back to confront him in the parking lot of his nearby apartment building, court heard.

The video shows Mr. Phillips backing away and fending the suspects off as they take turns trying to engage him.

Later, Mr. Phillips falls to the pavement with Mr. White in a headlock, as Mr. Rodgers and Mr. Huber jump into the fray, delivering a series of punches and kicks to Mr. Phillips' rib cage.

But before inflicting too much damage, the suspects disengage and head back toward the truck as Mr. Phillips yells "Is that all you got?"

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Crown prosecutor Bob Richardson argued that Mr. Phillips's actions were justified once the suspects had him surrounded

"Clearly at that point he's got no choice but to engage these people," Mr. Richardson said. "He was trying to make himself bigger to face the danger that was there."

Earlier in the trial, Mr. Phillips testified the initial racial slur also included a threat that the accused were "going to come back and kill your family." That part of the incident was neither recorded on the video nor corroborated by other witnesses.

Both the Crown and the defence spent considerable time Monday casting doubt on the testimony of each other's witnesses.

Mr. Richardson pointed out that Mr. Rodgers initially denied drinking prior to the incident, but later admitted to police he'd had "maybe six beer and couple of shots" of tequila.

All three men initially denied dropping the "N-bomb," but Mr. Huber later told police the term may have been used "not as a racial term," but to describe someone who is "just a loser."

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Just prior to the event, Mr. Huber saw the victim speaking with a teenaged boy and mistakenly concluded that Mr. Phillips was a drug dealer, Mr. Richardson said.

Mr. Marion, who represents Mr. Rodgers, attacked the credibility of Mr. Phillips, citing his admission during testimony that he was a heroin addict for three years and was once charged with robbing a pizza delivery boy.

Mr. Phillips also tried to avoid police who arrived to investigate the incident, disappearing into his apartment for 15 minutes and then leaving through the back window, Mr. Marion said.

If convicted, the men face a maximum of six months in jail. The Crown has indicated that during sentencing it plans to argue the assault was motivated by racial hatred. But even if the court accepts that argument, the maximum penalty cannot be increased.

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