R. v. Ball, 2011 ABQB 206

Court of Queen ’ s Bench of Alberta Citation: R. v. Ball, 2011 ABQB 206 Date: 20110325 Docket: 090305871Q1 Registry: Calgary Between: Her Majesty The Queen Crown - and - Justin Benoit Ball Accused _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice P. R. Jeffrey _______________________________________________________ [ 1 ] On December 8, 2010, Justin Benoit Ball was found guilty of assault causing bodily harm, pursuant to

section 267 (

b) of the Criminal Code of Canada , R.S.C. 1985, c. C-46, as amended. Since then counsel have jointly requested my reasons in this form to enable them to prepare their sentencing submissions. [ 2 ] Justin Benoit Ball was charged with assault causing bodily harm upon Renée Sehn as a consequence of the events between 8:00 p.m. March 7 and approximately 3:30 a.m. March 8, 2009. The parties agree that Ms. Sehn suffered bodily harm as a result of the events transpiring during those hours. They disagree that he assaulted her and on whether, even if he did assault her, the injuries were caused by Mr. Ball in any such assault rather than from other events transpiring between them that night.

[ 3 ] The injuries that Ms. Sehn suffered were in no way trifling or transient. She suffered a broken collarbone, a broken finger, bruising and swelling of her lip, a cut and other small scrapes on her chin, bruises at multiple places on and near her elbow, and an abrasion and some bruising of her right forearm. It may be associated with the collarbone injury, but she also suffered some swelling and discolouration at the right base of her neck. She was told that redness on the back of her head was observed. She suffered dizziness and a headache for about a day following the events.

Finally, she suffered bruising on her knees and back. [ 4 ] At the time of the events in issue Mr. Ball (who is also referred to herein as “Justin”) was 6 foot 4 inches tall and weighed 270 pounds; Ms. Sehn (who is also referred to herein as “Renée”) was 5 foot 9 inches tall and weighed 145 pounds. The two were not living together but had been dating for approximately two years, plus off and on for another two years before that. [ 5 ] While on a date at a drinking establishment with friends of Mr. Ball, on March 7, 2009, the two had a disagreement. The disagreement was about whether Mr.

Ball would leave the birthday celebration of one of his friends, which the two planned to attend that evening, and go with Ms. Sehn to another drinking establishment to attend an engagement party of one of her friends. She had just received an invitation by text message. Mr. Ball did not want them to change from their original plan. They argued about that for approximately five minutes. Ms. Sehn travelled to the engagement party by cab alone. Ms. Sehn paid for her share of the drinks and Mr. Ball walked her to the cab. Neither said they were upset at that time. Ms. Sehn would contact Mr.

Ball when she was ready to be picked up. She left her car and Mr. Ball would use it to pick up Ms. Sehn. [ 6 ] It was approximately 1:30 a.m. when he came to pick her up. The two differed in their recollections of the events that transpired after that. [ 7 ] According to Ms. Sehn, in the vehicle the discussion became heated. The two argued about the two separate parties, perhaps about which was the better in retrospect. At least one of the two, if not both, were disappointed that the evening did not unfold as each had expected. [ 8 ] When they reached the backyard to the entrance to Mr.

Ball’s basement suite property, they exited the vehicle and argued as they walked along the sidewalk by the garage. Renée said she wanted to go back to the birthday party and he did not want to. She says he came too close to her, that he stood right in front of her yelling at her. She says she pushed him to bet him to back away, using both hands on his chest. Under cross-examination she acknowledged she had been ahead of him on the pathway walking single file. They were arguing as they walked and she stopped and turned. He did not stop but continued on towards her.

She pushed him to back away with her hands. [ 9 ] Justin then pushed her to the ground with his hands on her shoulders. She said he did that three times. On the third time he knelt overtop of her and started banging her head against the ground maybe four or five times. Her head was in his hands. The surface of the ground was snow-covered grass. [ 10 ] On two occasions, she said, she got up from the ground by herself.

The third time (I infer that she was saying this was the time she said he knelt over top of her) she started to scream and he pulled her up by her arms. [ 11 ] They went downstairs; she says she went first and that he did not try to stop her. She wanted to collect her scissors and other tools of her trade (she was a hair stylist) that she did not want to leave behind. She says she just wanted to gather them and leave. [ 12 ] He followed her and they were yelling at each other. Ball wanted her not to wake other tenants. She said: That’s when I got physical in his house. She said:

He came at me and I pushed him away and he pinned me up against the wall and started banging my head into the wall. [ 13 ] She said Ball did this three or four times. He held her with one arm, she said, and with the other “pounded my head into the wall,” pushing on her forehead. Then he did it again. She said: And I went into his room and he followed me and he was checking my shoulder to make sure he didn’t dislocate it because I was telling him my shoulder hurt. [ 14 ] She says she went into his room once he was not holding her to the wall because her shoulder was hurting. She sat on his bed.

Unable to move her arm she asked him to take her to the hospital twice. On each occasion he said no, that he would end up in jail. She says she first noticed that her shoulder was hurt when she was in his room on his bed. [ 15 ] She says they were talking. She wanted to leave and Ball did not want her to go. She said Ball put her into his bed and then went to sleep on the couch.

She waited until Ball was asleep and then left on her own, using her car and operating the gear shift with her left hand since she was unable to use her right hand. [ 16 ] Approximately 45 minutes lapsed before she left the suite after asking to be taken to the hospital. She drove to her apartment, leaving around 3:00 or 3:30 a.m., and called her sister, who called her back around 4:00 a.m. and then picked her up at her apartment and drove her to the hospital. She reached the hospital around 5:00 a.m. [ 17 ] Ball’s recollection, however, was that he picked Ms.

Sehn up at the engagement party; that they were quiet in the car for the first part of the distance they travelled to her apartment. He says that she mentioned her party was better. He said it was too bad that she left the party when she did because some of his other friends arrived after she left. The two argued some more. He says that Sehn said “Then let’s go back.” Ball thought it was pointless by then. He says he called Heather, the birthday girl, to see if she was still there. He was not able to reach her. He said, “This is silly.

Let’s just go home.” [ 18 ] When continuing towards her apartment he says she started yelling at him. He says he sloughed it off saying, “Whatever” and “Whatever Renée.” He said she ripped her seat-belt off and challenged him. He says that he determined right then that they would sleep apart that night instead of together at her place, but speak again in the morning. He changed routes and headed to his apartment to be dropped there, since they were in her car. He says she agreed.

But he said that on the way: “She kept yelling at me and yelling at me.” [ 19 ] He pulled into the back of the house of his basement suite. He planned to go in and that she would drive herself home from there. She then said, according to Ball: “It’s over. It’s fucking over. It’s fucking done. I’m coming in to get my stuff.

I’m coming in to get my stuff.” He said he responded, “Okay, fine, sure,” and then testified that he did not think she was fully serious about it really being over based on her past patterns. [ 20 ] He says when they were walking by the garage she started going on about him not loving her or giving her the attention he thinks she was expecting, yelling: You don’t fucking care. I loved you. I fucking loved you. And I just said, Whatever. Whatever, Renée. [ 21 ] He said at that point she turned around and was yelling at him with the same words and started “hammer-fisting” him on the chest.

He said he kept walking slowly forward saying: Stop hitting me, Renée. Stop fucking hitting me, Renée. He said they walked for about another nine feet past the shed closer to the back door. He said she made a sound and “smoked” him in the

nose with the palm of her hand. [ 22 ] He said his eyes instantly shut and went watery. He grabbed her by the lapels on her jacket and cast her to the side in the snow. He said she went face down in the snow and that she was “just freaking out”, made “an inaudible sound” and was “going quite spastic”. He said he then put his hand on the small of her back, held her down and said: Just calm down, Renée. Calm the fuck down. If you calm down, I’ll let you up.

He said she calmed down, so he stepped back and she got up and walked over to the back doorstep. [ 23 ] He saw her glasses and keys in the snow, or understood they were somewhere in the snow, but he says he then found them, got them, and gave them to her. He says he then came around the side of the step and said, “Can you let me past?” She purportedly resumed some of the same phrasing, “I loved you. I fucking loved you.” He said: Just let me in, Renée. I don’t even care anymore. I want you to get your stuff and just get out. He says that at that point she again hit him with the palm of her hand to his nose.

He said again his eyes went watery. He grabbed her again by the lapels and again cast her into the snow. He saw peripherally that she landed on her back. [ 24 ] He says he went down the steps and in. He said she then came flying through the back, slammed the door, and came yelling down the steps. He put his hand, he says, over her mouth but not tight. He said she yelled about him not wanting to wake up “Charles and Judith”, tenants also in the house.

After 10 or 15 seconds she had stopped and he removed his hand. [ 25 ] He opened the door, he says, and entered and retrieved a plastic bag for her to get her stuff and then went to the bathroom. He says they met following that between the dining room and the living room. He opened the bag, he says, and she put the stuff in, and then he placed the stuff at the back door and asked her to leave. He says that she then started screaming again, “No! No!

No!” and repeating about him not caring and not loving her, also about her having been prepared to go to Australia with him and his Mother being right about him. [ 26 ] He says then at the back landing that she was looking up at him, reached out and grabbed his chin patch and pulled him forward. In doing so this caused him to go “flying into her with enough momentum that [his] foot went through the bar that was blocking that space.” He said she then pulled the hair on the top of his head straight down. He says he screamed for her to let go of his hair.

He lifted his left arm, put his right forearm between them at chest level then rotated backward saying “Let go of my fucking hair, let go my f’ing hair.” She then let go, he said. [ 27 ] At no time did Ball speak of Sehn being pinned up against the wall down in the basement suite as she described, and he banging her head against it. He denied that.

But he says his stumbling after his chin patch was pulled caused him to brace himself with his forearm against her chest, forcing her into the wall at the base of the entry way stairs. [ 28 ] He turned around to step back into his place, noticed some of his hair falling off of him, looked back over, and it seemed to him that all of Renée’s energy flushed out of her body as he stepped back out of the way, and it appeared to him that she was about to crumple down onto the floor. I got the impression that Ball was saying that he eased her fall. [ 29 ] He said she was not making any sense.

She was sitting on the carpet with her back to his couch. He said she was crying and that he told her it was a bad idea for her to go home. “You can sleep it off” he said, “You sleep in the bed. I’ll sleep on the couch.” and that she agreed. He says he helped her up and let her into his bedroom.

[ 30 ] He says he left her there, cleared blood from his nose in the bathroom, went back to the room where Renée was and heard her say that she needed him to take her to the hospital. He looked at her shoulder, not believing her. He said it looked fine, suggested she leave and tried to get help by phoning a sister and then by phoning a cab. Neither of those efforts were successful. He said he told her he didn’t want to take her to the hospital because, with alcohol on his breath and her injured, “I’m going to jail.” He suggested she sleep it off and they would see in the morning. He says she agreed.

He went to the couch. After laying there about ten minutes, she got up and went to leave. He checked with her that she was able to drive and let her go. [ 31 ] Those are the two differing versions of the events of those hours. [ 32 ] There are a number of points of agreement between the versions of the events. As I have already indicated, both parties agree that Ms. Sehn suffered bodily harm. Both parties agree that those injuries must have occurred while the two were fighting. Both agree on the amount of alcohol they consumed in the presence of the other.

Both agree that the alcohol would have a greater effect on Ms. Sehn than Mr. Ball given the significant difference in their body sizes. Both agree that upon exiting the vehicle to head into Mr. Ball’s residence, Ms. Sehn walked ahead. Both agree that he kept advancing towards her in that backyard. Both agree that they were involved in an altercation with each other, that had more than one episode or flare up. Both agree that at one point during the altercation in the backyard outside Mr. Ball’s basement suite, Ms. Sehn was on the ground and Mr. Ball was overtop of her.

Both agree that one of the episodes was within Mr. Ball’s basement suite. Both agree that sometime after that episode Ms. Sehn asked Mr. Ball to take her to the hospital. Both agree that Mr. Ball refused to do so. Both agree that Ms. Sehn in Mr. Ball’s bedroom permitted Mr. Ball to inspect her arm and shoulder and that he did so since she was complaining of injury. Both agree that Ms. Sehn asked Mr. Ball to call her sister Amie to assist. Mr. Ball says that he did.

Amie says she had record of a telephone call on her cell phone from a number that she did not recognize that could have been placed at about that same time. Both agree that Ms. Sehn asked Mr. Ball next to call her a cab. Because of the weather, Mr. Ball says he was not able to secure a cab. Both agree that Ms. Sehn remained for a time in the bedroom and Mr. Ball reclined on the sofa in another room. [ 33 ] There were many opportunities for both Ball and Sehn to avoid or defuse their escalating fight, but neither did. All these events could have been averted.

Both were actively involved. [ 34 ] I find that Renée was incensed and, as she acknowledged, was under the influence of alcohol. So was Justin. Justin acknowledged this when explaining why he refused to take Renée to the hospital. [ 35 ] I share the Crown’s doubt that Justin was as calm and polite in his demeanor during those events as he was in Court, but then he never said that he was.

He testified on a few occasions that he, too, was yelling and swearing back at Renée both in the backyard before he first cast her down and also in the house when he says she got the upper hand on him. [ 36 ] I find that Sehn turned and stopped on the pathway between the car and the back door. But Ball did not stop. I find that he was the aggressor in the back yard, continuing to advance forward after Sehn had stopped to confront Ball verbally, turning the verbal dispute into a physical one.

She had stopped to face him and to speak to or yell at him, but he asserted himself physically first. [ 37 ] I find that Sehn did hit Ball at some point. His comment to one of the arresting officers to that effect shortly after the events, plus his mother’s testimony that Sehn said to her that she had hit him, satisfy me in that regard. I therefore do not believe Sehn when she testified that she never hit Ball. [ 38 ] I find that she did strike him, perhaps in the nose, but at most once not twice as he suggests.

A police officer attending the scene 9:30 a.m. that day recalled Ball saying he had suffered a bloody nose and that he had been hit in the face by the palm of the victim’s hand. The officer did not observe any dried blood on Ball’s face and another officer did not observe any remnants of same in the bathroom as Ball said he left there when cleaning the blood from his nose a few hours earlier. That officer was not looking for any, she was securing the suite upon the officers’ entry, but she said if any was there she would have noticed and recalled.

Ball was asleep until the officers arrived, so nothing could have been cleaned up in the bathroom from the night before prior to their arrival. [ 39 ] Renée’s hit, or hits, to Justin may have been the ‘hammer-fisting’ he described in the backyard, or when she tried to resist him during the episode in the basement suite. On the evidence I am unable to determine that with any greater specificity.

[ 40 ] But I do find that Ball’s physical attacks exceeded any degree of force that may have been necessary to either protect himself or to restrain Sehn. I emphasize “may” since, as I have already found, it was Ball that turned the dispute into a series of physical altercations; he was the aggressor.

She resisted, at one point at least by striking Ball, but his use of force exceeded any degree of force that may have been necessary to resist. [ 41 ] I find that Ball thrust Sehn to the snow as they both describe (differing only on whether he pushed her on her shoulders to do so, as she recalls, or he grabbed her by the lapels to do so, as he recalls).I find that he threw her to the ground in the backyard at least twice. On at least one of those occasions Ball banged Sehn’s head onto the frozen ground.

I do not believe him, based on the totality of the evidence, when he says that he did not bang Renée’s head into the snow. Among other things, Ms. Whitelaw, his mother, testified under cross-examination that Renée told her the very next day that Justin pushed her down in the snow and banged her head into the ground multiple times. [ 42 ] I find that at one point Ball was kneeling on her to hold her down. That is the most likely explanation of the bruising on her back.

I simply do not believe his version that he merely held her down with his hand in the small of her back and then stood back while she rose. [ 43 ] I find that Ball throwing Sehn down to the ground was not mere reflex defensive action. He did not pull back, step back, recoil or raise his arms to protect his face after, as he says, being struck in the nose and his eyes caused to water. On his own version his reaction was to offensively grab her by the lapels and throw her to the ground. [ 44 ] Sehn suffered an array of bodily injuries.

I find the bruising of her back to have resulted directly from his kneeling on her while in the back yard. I find the bruising on her arm near her elbow to have resulted from Ball pulling her up by the arm as she recalls. I am not able to ascribe the swelling on her lip or the cut and scrapes on her chin to any particular episode. The same is true of the broken finger. I believe it probably occurred during one of the times he forcibly thrust her down onto the ground, likely as she braced herself for the impact with the ground. But I am not certain beyond a reasonable doubt.

Nevertheless, in respect of all of these injuries that cannot be connected to a specific single action of Ball over the 60 to 90 minutes in which the injuries were inflicted, I am satisfied beyond a reasonable doubt that they were not self-inflicted of with her consent and that they did not result from any momentary reflex, any limited reaction or any controlled or measured responses by Ball. I am satisfied beyond a reasonable doubt that they resulted from Ball’s unprovoked and excessive use of force upon Sehn, beyond all proportionality to Sehn’s actions and words.

Ball’s actions were not spontaneous reflexive reactions, or over-reactions in a moment of provoked rage, and were in no way commensurate with any risk he faced. [ 45 ] I find that Sehn’s collar bone was broken in the incident in the basement suite, not outside. A break occurring earlier than that is not consistent with the version of either actor. If the accused is right that Sehn grabbed his chin-patch, and then his hair, down in the basement suite, then in doing so she used the muscles attached to the collarbone and one if not both arms. Therefore her collarbone was fine up to that point in time.

Under his version of events, her collarbone must have broken after grabbing his hair with sufficient force to cause his 270 lb frame downward so quickly that he lost his balance. If his version is correct the break must have occurred as he pushed her to the wall to brace himself while stumbling as a consequence of her actions. [ 46 ] However if she is right that once down in the basement suite he came at her and she pushed him away, then, by her testimony too I am satisfied that her collarbone was not yet broken.

She would not have been able to push him away as she described if her collarbone was before then broken, at least not without a memorable sharp pain.

None was described. [ 47 ] Therefore regardless of which version I believe in respect of the basement events, in so far as whether the collarbone was by then broken (during an event outside the basement suite prior to that), I am satisfied beyond a reasonable doubt that it was not. [ 48 ] I find that Ball caused the broken collarbone, the associated discolouration and swelling at the right base of her neck, the redness on the back of Sehn’s head, and her ensuing protracted headache and dizziness, and that they resulted from Ball violently pinning her, repeatedly, against the wall then banging her head against the wall, over her attempts to resist. [ 49 ] I do not believe Mr.

Ball’s version of the episode within his basement suite. His version that Ms. Sehn pulled his 270-pound

frame downward by his chin-patch with sufficient force that with foot trapped he was caused to gyrate, thrust his forearm up to bracehimself, fall into Ms. Sehn and press her against the wall, stretches credulity. The level of detail necessary to try to explain this versionseemed contrived. I accept Sehn’s version in so far as Ball was the initiator and that he had her pinned against the wall and that hebanged her head against that wall. This was not a reflex action on Ball’s part. Furthermore, following the steps of analysis in R. v.

W.(D.), (SCC), [1991] 1 S.C.R. 742, nothing in Ball’s evidence or, apart from or in conjunction with that, in the totality ofthe evidence raises any reasonable doubt in my mind that the episode within the basement suite involved Ball assaulting Sehn andcausing her bodily injury. [50] I am satisfied of all the elements of the offence beyond a reasonable doubt. What is reasonable doubt? The Supreme Court ofCanada has put it this way in R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320: Even if you believe the accused is probably guilty or likely guilty, that is not sufficient.

In those circumstances you must give the benefitof the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt. [51] I am satisfied beyond a reasonable doubt that when Sehn hit Ball it was in response to his acts. She was not the one initiatingthe use of physical force. Also I am satisfied beyond a reasonable doubt that nothing she did once or collectively justified Ball subjectingher to the degree of force that he did, episodically, over the course of the next 30 to 90 minutes.

The multiple episodes of injury, andlocations, demonstrate beyond a reasonable doubt that he assaulted her, that his conduct was far in excess of and not provoked by orproportionate to her conduct. [52] Ball argues that, in the alternative, if he is guilty of assault, that it cannot be known which of the different episodes of theoverall altercation caused the broken collarbone and other bodily harm.

So far as that remains indeterminate, he argues, I necessarilyhave more than a reasonable doubt that his assault caused bodily harm. [53] It is not necessary for me to consider this argument in the alternative, since I have found specific forms of bodily harmresulted from specific assaults by Ball (see paragraphs 44, 45 and 48 above). [54] Parties may arrange a time to speak to sentencing. Heard on the 6th, 7th and 8th day of December, 2010. Dated at the City of Calgary, Alberta this 24th day of March, 2010. P.R. Jeffrey J.C.Q.B.A. Appearances: Margot Engley Crown Prosecutor's Office

For the Crown Michael J. Kiss Kiss Law Office For the Accused