R. v. Bell, 2011 ABQB 563

Court of Queen ’ s Bench of Alberta Citation: R. v. Bell, 2011 ABQB 563 Date: 20110915 Docket: 100555549Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Brittany Ann Bell Accused _______________________________________________________ Oral Reasons for Judgment of the Honourable Mr. Justice R.P. Marceau _______________________________________________________ [ 1 ] Brittany Ann Bell age 20 but 19 in March of 2010 has been tried by me sitting without a jury on a two counts information: 1.

That she, on or about the 14 th day of March, 2010, at or near Edmonton, Alberta, did unlawfully wound, maim, disfigure or endanger the life of Amanda Wutzke, thereby committing an aggravated assault, contrary to

section 268 of the Criminal Code of Canada . 2. That she, on or about the 14 th day of March, 2010, at or near Edmonton, Alberta, did, in committing an assault upon Michelle Plach, cause bodily harm, contrary to

section 267(

B) of the Criminal Code of Canada .

[ 2 ] For 19 seconds on the 14 th of March 2010, between 048-24–037 and 48 43 650 seconds a fight occurred at the nightclub called Dirty Pretty located at 8115 - 105 Street in Edmonton, Alberta. The players in this fight are as follows. Amanda Wutzke [ 3 ] Amanda is a friend of Michelle Plach and Shiloh Secord. Amanda was 19 at the time and is now 20 years of age. It is undisputed that during the fight, she sustained a deep wound from just below her right eye down to her neck about seven inches long. The wound is jagged and even after revision by a plastic surgeon, it is clearly visible and disfiguring.

She has paralysis of part of the right side of her face and when she blinks her eye there is a tick at the corner of the right of her mouth. I am satisfied beyond a reasonable doubt that the injury was sustained during the 19 seconds (in fact, in the last second or two), that it occurred within the City of Edmonton, Alberta and the injury satisfies the essential element of both wounding and disfigurement, either one of which would satisfy one of the essential elements of aggravated assault

Section 267 of the Criminal Code as charged in Count #1. Except for being a friend of Ms. Plach, there is no reason for Ms. Wutzke to have attacked the accused Ms. Bell. Michelle Plach [ 4 ] Within a day or two, Ms. Plach was to turn 20 years of age. She and her friends planned to have a birthday party on the 13 th and into the 14 th of March 2010 and in anticipation, she and a friend had paid for a reserved booth at the nightclub. She, Ms. Wutzke and Shiloh Secord were friends and co-workers.

Shiloh Secord [ 5 ] Shiloh is 19 years of age and went to the nightclub about 2300 hours on the 13 th of March and all three were involved in one way or another with the attack on Ms. Bell. Brittany Bell [ 6 ] Brittany was 19 years of age, now 20. She knew Ms. Plach because of an incident six months before. I accept the evidence of Ms. Bell that this incident involved Ms. Bell being at a party as the date of a man who had previously had some relationship, at least as a friend, with Ms. Plach. Ms. Bell testified that at the party, Ms. Plach was texting Ms.

Bell’s date making disparaging remarks about the unworthiness of Ms. Bell as a date. Of course this led to animosity between the two. Ms. Bell had never met Ms. Plach before this incident, but both acknowledged the other disliked her. Kenneth Jacob Carr [ 7 ] Mr. Carr, aged 27, referred to in the evidence as KJ was Ms. Bell’s companion, if not date. They were acquaintances and had gotten together for a drink at the West Edmonton Mall where they met two other friends who had a drink with them and went to the nightclub about 11:00 pm on the 13 th of March 2010.

These two friends did not testify and although they were identified dancing very close to Mr. Carr and Ms. Bell, they do not appear to have been involved in the fight. It is to be noted that Mr. Carr is 6 feet tall, weighs 248 pounds and appears very fit. He and Ms. Bell were sober. He was 100% sober having had 2 or 3 drinks in the whole night. He also

testified Ms. Bell had only 2 to 3 drinks. He was certain of this because he was buying the drinks. It is also noteworthy that although he is a journeyman carpenter working at an oil sands plant, he has acted as a bouncer or security man at nightclubs off and on, full or part time, since he was 18 years of age. [ 8 ] Justin Bell is Ms. Bell’s brother and he and his girlfriend were at the nightclub and their only involvement was that when Ms. Bell came to the nightclub, she saw her brother and came and sat at the booth reserved by Ms. Plach and there was an ugly incident when Ms. Plach saw her there.

Also, Justin Bell was at a party some six months before where Ms. Plach was present as Justin Bell’s friend and Ms. Bell, I gather, was present as the sister of Justin Bell. This led to there being some animosity between Ms. Bell and Ms. Plach. Neither Justin Bell nor his girlfriend testified and they do not appear to have been involved except in the incident at the reserved table. [ 9 ] I find the following facts: (

a) There was animosity between Ms. Bell and Ms. Plach dating before this evening. (

b) There was a confrontation at the reserved table when Ms. Plach saw that Ms. Bell was seated there. Ms. Plach would have me believe they simply had harsh words and Ms. Bell retreated. I prefer the evidence of Ms. Secord and Ms. Bell that Ms. Plach created a bit of scene commenting on what Ms. Bell was doing at her reserved table at her birthday party. I also believe Ms. Bell retreated and said she had not intended to cause a problem and didn’t want any trouble. (

c) There was a meeting between Ms. Plach and Ms. Bell about 45 minutes to an hour after the reserved table incident. This was a chance meeting; one was coming down off the dance floor, the other ascending steps to the dance floor. Ms. Plach said they yelled at each other, but did not touch. Ms. Bell said Ms. Plach pushed her. Ms. Plach said Ms. Bell tried to hit her but missed. I find there was a confrontation and it led to a meeting between Ms. Plach, Ms. Wutzke and Ms. Secord in the washroom and that this meeting in the washroom preceded by only minutes the fight itself. (

d) The three girls came out of the washroom and got onto the dance floor. Ms. Plach pointed at Ms. Bell identifying Ms. Bell to Ms. Secord and Ms. Wutzke. Ms. Bell was dancing facing Mr. Carr. Neither Ms. Secord nor Ms. Wutzke knew Ms. Bell before this date. There is no question in my mind on all of the evidence, many essential parts confirmed by the security video of the dance scene, that the three girls had decided to have a confrontation with Ms. Bell. Given that Ms. Wutzke immediately walked over to Ms. Bell and attacked her physically, I find that at least Ms. Wutzke intended to beat up Ms.

Bell who was shorter than her and somewhat smaller. While this may not have been the original intention of the other two, they participated in the attack. As far as participation is concerned, Ms. Plach, in her statement to the police, said the fight started when she confronted Ms. Bell and Ms. Wutzke, stepped between them and got hit by Ms. Bell. The video clearly contradicted this version of the start of the fight and Ms. Plach acknowledged that.

She admitted she had given a false statement to the police but could not explain why and denied this version had been decided upon before the three gave their statements to the police some days after the event. Ms. Plach also readily agreed that the video shows she was leaning toward Ms. Bell close enough to make contact after Ms. Wutzke had attacked Ms. Bell. Ms. Wutzke also told this version to the police, about being caught in the middle between Ms. Bell and Ms. Plach, but at trial said she couldn’t remember anything that happened after Ms.

Bell was pointed out to her until sometime after she was injured and the fight was over. She also denied collusion on the statement. Ms. Secord also told the police the same version about the start of the fight. At trial, she readily agreed this was false and readily agreed that Ms. Wutzke had attacked Ms. Bell and she assisted by taking Ms. Wutzke’s purse and cell phone from her. Given the recantation, the similarity of the stories, I find these three girls concocted this untrue version. (

e) It affects their credibility, although in practice Ms. Wutzke has no helpful evidence about the fight. Ms. Plach has agreed she engaged in the fight, but did not see anything in Ms. Bell’s hands during the fight. She said she was hit on the bridge of the nose by Ms. Bell, none of which is contradicted by the video, nor is it necessarily corroborated by the video. Ms. Bell does not deny she fought back against both Ms. Wutzke and Ms. Plach; so, credibility of Ms. Wutzke and Ms. Plach has no serious impact on my findings of fact. (

f) Ms. Secord said she grabbed Ms. Wutzke’s cell phone and purse to better enable Ms. Wutzke to fight Ms. Bell. Although Ms. Secord did not admit any further involvement and Ms. Bell did not testify that she was attacked by Ms. Secord, Mr. Carr’s evidence was that all three girls were trying to get to Ms. Bell (sometimes very successfully) by going over him, under him, around him or through him (which I understand to mean by pushing him aside). He was punched in the head, in the back and kicked from behind and this was with reference to a time when Ms. Wutzke was to his right or in front of him and Ms.

Plach had managed to get to Ms. Bell. Although Mr. Carr could not find corroboration in the video, I found him to be a truthful witness and I accept his evidence that there was a third person

kicking and punching from behind and that could only have been Ms Secord. On this point, I believe Mr. Carr largely because his evidence in chief is never contradicted in the video although because it is a fairly poor, grainy video, not all that he says is corroborated, but much is. (

g) From before the start of the fight both Ms. Bell and Mr. Carr had a beer bottle in their hand and the video corroborates that. Mr. Carr says he dropped the bottle when the fight started. In the video, I did not see Mr. Carr ever had a bottle in his hand during the fight. Ms. Bell does not know what happened to her bottle. It is possible that the video shows a beer bottle in her hand during the fight, but because the video is not that clear, I would not be prepared on the evidence of the video alone to believe she still had the bottle in her hand during the fight.

There was a broken beer bottle on the floor which was not put in evidence, so it is not linked to Ms. Bell. Given the injury to Ms. Wutzke which had to have been caused by a sharp jagged object, the timing of that injury, the fact that Ms. Wutzke was fighting mainly with Ms. Bell and somewhat with Mr. Carr, any explanation other than that Ms. Bell retained the beer bottle during the 19 second fight and when the two came to blows in the last second or two of the fight, Ms Bell had to have struck Ms. Wutzke with her left hand which had the beer bottle in it.

The bottle must have shattered causing the seven inch cut to the right side of Ms. Wutzke’s face. Until this point, Ms. Wutzke was taking the fight to Ms. Bell. In fact, the video shows there was a lull in the fight and then Ms. Wutzke attacked from several steps away and Ms. Bell moved a step or so to confront her or better defend herself. Mr. Carr says, at this time, both were flailing at each other and then Ms. Wutzke backed off and she was injured in the face. Whatever blows were struck at this crucial time is obscured in the video by Mr. Carr’s presence in between the camera and the two girls.

Although the video shows Ms. Bell partially visible to his left and Ms. Wutzke partially visible to his right, part of each fighter is obscured and their hands and forearms are not visible. Nevertheless, given Mr. Carr’s evidence that they were flailing at each other, any other explanation for Ms. Wutzke’s injury would be speculation. Preliminary Conclusion [ 10 ] Given that finding and all of the evidence, I am satisfied Ms. Bell intended to strike Ms. Wutzke and a reasonable person would inevitably have realized that striking a person with a beer bottle in one’s hand would subject Ms.

Wutzke to the risk of bodily harm. That is the last essential ingredient of aggravated assault so that unless Ms. Bell’s answer that she acted in self-defence raises a reasonable doubt, she must be convicted. [ 11 ]

Section 34 of the Criminal Code reads: 34.

(1) Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is not more than is necessary to enable him to defend himself.

(2) Every one who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if (

a) he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purposes; and (

b) he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm. R.S., c. C-34, S.34. [ 12 ]

Section 37 of the Criminal Code reads: 37.

(1) Every one is justified in using force to defend himself or any one under his protection from assault, if he uses no more force than is necessary to prevent the assault or the repetition of it.

(2) Nothing in his

section shall be deemed to justify the wilful infliction of any hurt or mischief that is excessive, having regard to the

nature of the assault that the force used was intended to prevent. R.S., c. C-34, S. 37. [ 13 ] I find that both s. 34 and s. 37 are applicable to this case. 1. I find the assault by all three girls was an unprovoked attack. There is no evidence at all that suggests Ms. Bell attacked first, nor is their any credible evidence that she did anything to provoke the attack. Of course, the main difference between Ms. Bell and her three attackers was that she was in possession of a beer bottle which can be a lethal weapon. The fact is that Ms. Bell did not bring a beer bottle to a fist fight.

She was attacked viciously when she had a beer bottle in her hand. Ms. Bell testified she feared for her life. Given the evidence of Mr. Carr and the video, I believe her fear was reasonable. Mr. Carr described the entire attack. He said that in his experience as a security guard and bouncer, he had never experienced people persisting in fighting after he intervened. Given his height, weight and apparent muscle, I believe many men would desist once he intervened. In this case, Mr. Carr said that all three girls fought to get at Ms. Bell as Ms. Bell did the best to defend herself and Mr.

Carr did the best he could to protect Ms. Bell from her attackers. I also take into account that by their own admission, all three girls were at least somewhat, if not quite, intoxicated. Probably, their intoxication fuelled this foolhardy attack. She testified she did not wish to inflict any injury. She said she did not know if she retained the beer bottle in her hand during the fight. I have found she had the bottle till the last second or two of the fight when she struck Ms. Wutzke with it in her hand causing the serious injury to Ms. Wutzke’s face.

In deciding whether there is air of reality to self-defence under section 34(1), I must consider the evidence as to what the accused said including the fact that persons acting in self-defence must often make hasty decisions under stressful or frightening circumstances. First, I consider whether I believe her when she says she was not aware of the bottle being in her hand during the fight. The facts in this case are not unlike those in R. v. Matthews 2002 BCPC 452 . At para. 35 Judge Phillips wrote: 35.

It was Gemma Matthews’ evidence that at this point Clayton Murphy put out his arm and said to her, “You are fucking dead, bitch.” He was holding onto Ms. Matthews as he said this. Ms. Matthews told the court that at this point she swung her arms up, first her left and then her right, to try to stop Mr. Murphy from hitting her, because he was pushing her backwards. She said she had the beer bottle in her right hand when she did so. She said she was in shock when she realized that the beer bottle had struck Mr. Murphy in the face. And later at part of para. 36: ... She said that when she struck out at Mr.

Murphy she was not thinking about the fact that she had the beer in her hand at the time she struck him. Judge Phillips was also very aware that in the heat of the moment some decisions may be made which, on reflection after the facts, may not have been the best decisions. Judge Phillips went on to find that considering all of the evidence, he accepted Ms. Matthews’ evidence. I accept without reservation the evidence of Mr. Carr about the viciousness of the attack, the punching and grabbing by Ms. Wutzke, the pulling of the hair and punching by Ms. Plach and the assistance of Ms.

Secord which made it three against one, except for Mr. Carr’s quite substantial help. I find there is a substantial air of reality to Ms. Bell’s assertion that she feared for her life, she did not know the bottle was still in her hand and that she had no intention of inflicting any hurt, just defending herself. Section 34(1) and

section 37 both deal with proportionality using different language. In 34(1) the wording is “not more than is necessary to enable him to defend himself”. The wording in 37(1) is “if he uses no more force than is necessary to prevent the assault or the repetition of it.” I find there is an air of reality to the argument that these girls would have persisted in trying to hurt Ms. Bell until restrained or prevented from doing so in some fashion and that Ms. Bell had no choice to meet force with force so that the air of reality applies to the

proportionality as set out in both section 34(1) and

section 37. The Crown argues the initial unprovoked assault by Ms. Wutzke turned into a consensual fight with Ms. Bell sometimes attacking,sometimes retreating. I do not accept the Crown’s argument that Ms. Wutzke at some point was on the floor and Ms. Bell was getting thebest of her. Mr. Carr said that didn’t happen and I place little credibility on Ms. Wutzke’s evidence she was down at one point. The onlytime there was some air of reality to this argument was that at the end of the fight when Ms. Wutzke took several rapid steps to come infront of Mr. Carr and get to Ms. Bell, Ms. Bell came around Mr.

Carr to face her instead of hiding behind Mr. Carr. Mr. Carr said Ms.Bell did that to better protect herself. In the heat of that moment, even if it was, in retrospect, a wrong decision that does not turn this intoa consensual fight. R. v. Deegan, 1979 ABCA 198 , [1979] 6 WWR 97, 17 A.R. 187, 49 C.C.C. (2d) 417, a decision of our Court of Appeal sets outat para. 83 the onus of the Crown in rebutting or negativing the defence of self-defence: 83.

In addition, there was no direction that the onus was on the Crown to prove beyond a reasonable doubt that the requirementswere not met, nor was the pertinent direction given that if the jury was left in doubt as to whether or not the requirements were met itmust acquit the accused. Using the methodology in WD, I find the evidence of Ms. Bell is believable and it raises the defence of self-defence. The Crown has notrebutted the onus cast upon it to rebut that defence and Ms. Bell is accordingly acquitted of Count #1. Even if I had not accepted the evidence of Ms.

Bell, a consideration of all of the evidence certainly raises a reasonable doubt as towhether Ms. Bell acted in self-defence and I would have acquitted on that basis as well. 2. Count # 2 refers to the cut on the bridge of the nose of Ms. Plach. I think it likely Ms. Plach was struck at one point by Ms. Bell andlikely with the hand holding the beer bottle, but that could have been sustained without the beer bottle. However, even if the beer bottlecaused the cut, the defence of self-defence which I found was established with respect to the first count certainly applies here as wellbecause Ms.

Plach, whenever she was engaged with Ms. Bell was attacking her. So the defence of self-defence applies to Count # 2which is also dismissed. [14] The exhibits will be returned to the Crown at the end of the appeal period. [15] Ms. Bell, I find you not guilty of both counts and you are free to go. [16] I wish to thank counsel for their able presentation of a difficult case which had very sad consequences. Heard on the 12th day of September, 2011 to the 15th day of September, 2011. Dated at the City of Edmonton, Alberta this 15th day of September, .

R.P. Marceau J.C.Q.B.A. Appearances: Avril Inglis for the Crown Brian Peterson, Q.C. for the Accused