R v. PP, 2011 NUCJ 21

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: R v. PP, 2011 NUCJ 21 Date: 20110804 Docket: 08-10-585 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: PP _______________________________________________________________________ Before: The Honourable Mr. Justice Kilpatrick Counsel (Crown): M. Bryant Counsel (Accused): C. Lyons Location Heard: Iqaluit, Nunavut Date Heard: July 19, 2011 Matters: Criminal Code, ss. 145 (3) , 266 REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication) I. INTRODUCTION

[ 1 ] In the early morning hours of August 18, 2010, the peace of a residential neighbourhood in Iqaluit was shattered by the sounds of a child screaming. These were no ordinary screams. They were sufficiently loud and frantic enough to attract the attention of a passerby. This citizen went to investigate. The sounds were coming from inside a residential unit. The police were called. [ 2 ] As a result of the police investigation that followed, PP was charged with assaulting his 11 year old daughter, AB.

He defends this charge by asserting that he did not apply any unreasonable force to his daughter and that any force he did apply was justified in the circumstances. II. THE CROWN EVIDENCE [ 3 ] AB was called to testify against her own father. She is now 12 years of age. [ 4 ] AB clearly loves her dad. She confirms that this is so in her testimony. PP, according to AB, is normally a good dad. Following the break-up of AB’s mum and dad in 2006, PP began to drink. As the years passed, the drinking became heavier. [ 5 ] At some point following this break-up, AB decided to live with her dad.

She had been living with her dad for at least two years before the incident of August 18. AB says she had become accustomed to heavy drinking within the home. The night of August 18 was no exception. [ 6 ] AB says that two adult members of her extended family, an aunt and a cousin, came to visit on this night. The cousin brought a bottle of Smirnoff vodka to the home. The adults were drinking in the living room. AB says she retreated to her dad’s bedroom and watched TV. The drinking continued for some time. [ 7 ] At some point, the guests left the home.

AB’s cousin took the bottle of Smirnoff with him when he left. AB insists that at approximately 3:30 a.m. PP entered the bedroom and suddenly accused her of stealing the bottle of liquor. I infer from AB’s evidence that she denied that she had touched the bottle. AB was adamant that the bottle had been taken from the home by the person who had brought it – her cousin. AB says that she got scared when her dad got angry at her for stealing the bottle. She started to cry. [ 8 ] PP became very angry at this denial. AB insists that she was grabbed roughly on the arm by PP.

She was struck hard on the forehead twice with an open palm. These blows hurt her. AB says that she was trying to get away but PP continued to restrain her while seated on the bed. He tried to bite her on the cheek. It was at this point that a sound was heard on the outside landing. PP went to see who was there. It was a stranger coming to investigate the screaming. He said that he was calling the police, who arrived shortly thereafter.

AB called her mum to tell her what happened and she came and took AB back to her place after the police investigation concluded. [ 9 ] The police took pictures of marks on AB’s body. AB estimates that these pictures were taken approximately 20 minutes after the incident. [ 10 ] These photographs have been entered into evidence. The quality of the photographs is poor. There was no attempt by the authorities to reproduce the photographs on a picture quality printer. The pictures are grainy and are taken at some distance from the injuries they depict.

It is consequently impossible to detect petechiae within the area of injury. If the investigating authorities wish to use digital photography to record alleged injuries, some care needs to be taken to accurately reproduce the photographs for court purposes. [ 11 ] A close examination of the photograph of AB’s forehead does show faint redness. A photograph of the child’s left cheek shows a red area on the skin that approximates the size of a quarter. A photograph of the child’s arm shows what appears to be fresh bruising on her arm.

A photograph of the child’s back shows what appears to be a number of fresh red marks on the middle of the back. [ 12 ] In cross-examination, this young witness did not retreat one iota from her assertion that the Defendant had struck her twice on the forehead after accusing her of taking the bottle. AB was adamant that the incident occurred in the bedroom and not the living room, as alleged by the Defendant. This witness was adamant that at no time during the incident in the bedroom or anywhere else did the

Defendant attempt to calm her or reassure her by trying to kiss her. This witness was absolutely unshaken in her denial of the version of events claimed by the Defendant, namely that she had taken a cup containing alcohol from the Defendant’s bedroom while he slept and had poured this down the kitchen sink. III. THE DEFENCE EVIDENCE [ 13 ] PP testified in his own defence. In his evidence-in-chief, PP initially claimed that he had started drinking in the early evening at around 7:30 or 8:00 p.m. He claimed that this drinking had continued for an hour to an hour and a half.

Under cross-examination he conceded that this drinking had continued for much longer - for at least three hours. In cross-examination, PP says that the other two people left the house at approximately 10:30 or 11:00 p.m. He says that he then went to his bedroom to pass out around 12:30 a.m. The Defendant gives no evidence about what happened between the time of his guests’ departure and his loss of consciousness at 12:30 a.m. He says that he woke up when he heard the floor in his bedroom creak. He claims that he saw AB disappearing with a cup.

This was a cup from which he had been drinking earlier and that the Defendant believed still contained at least two ounces of alcohol. He followed AB to the kitchen where he watched her pour the contents of the cup down the kitchen sink. [ 14 ] PP says that he then confronted AB in what he describes as a “heavy” tone of voice, saying “I don’t touch your belongings, you don’t touch mine!” AB started to cry. PP says that he pulled AB onto the living room couch in an effort to comfort and console her, but the crying didn’t stop. AB was squirming and trying to get away.

PP says that he told his daughter to calm down and tried to kiss her three times on the cheek. [ 15 ] When asked by his own lawyer whether he had at any time slapped his daughter, PP says this: Q: [AB] said you hit her in the head twice there. Did you do that? A: No. It could have been when she was trying to move away from me. Other than that, I never slapped her. [emphasis added] [ 16 ] In cross-examination, PP agrees that he had been drinking for at least three hours before the incident. PP agrees that he “passed out” because he was drunk. He agrees that he was still drunk when he woke up.

This is why he describes himself as staggering and feeling numb on waking. PP insists that being drunk did not affect his memory of the events of the evening. He claims to remember everything clearly. PP also insists that heavy drinking did not affect his behaviour or his mood. [ 17 ] PP agrees that his daughter was not just crying – she was screaming. With respect to the bruises on his daughter’s arm, there is no real explanation offered by the Defendant. He insists that he did not squeeze the Defendant’s arm when he was restraining the child.

The Defendant was shown the photographs of his daughter’s forehead, but claimed not to see any marks or redness. [ 18 ] In

summary, the Defendant appears to concede that he might have grasped the child’s arm when he was restraining her on his lap, but claims that he did not squeeze the arm hard enough to cause bruising. The Defendant concedes that the child might have been hit on the forehead, but claims that this might have been the result of an accident while he was restraining the child on his lap. The Defendant concedes that he did move his mouth to the child’s face, but alleges that this movement was part of an innocent attempt on his part to calm the child by kissing. IV.

THE BURDEN OF PROOF AND THE ISSUE OF CREDIBILITY [ 19 ] PP is presumed by the law to be innocent of this criminal allegation. He does not have to establish his innocence. The burden of proof remains on the Crown throughout this trial. This burden never shifts to the Defendant. The standard of proof required to establish guilt is a high one. It is only proof beyond a reasonable doubt that can displace the presumption of innocence. Suspicion alone is not enough. [ 20 ] PP has given up his right of silence. He has testified in his own defence at his trial on these allegations.

If I believe the Defendant’s evidence, I must find him not guilty. If I do not believe his testimony, but find that this evidence raises a reasonable doubt in my mind about any essential element required to be proved by the Crown, PP must be given the benefit of this doubt. Under these circumstances, the presumption of innocence has not been displaced and the Defendant must be acquitted.

[ 21 ] Even if I reject the Defendant’s evidence, even if I find that it does not raise a reasonable doubt, PP can only be convicted if, on all the evidence, his guilt has been proven to the requisite criminal standard by the Crown. [ 22 ] A criminal trial is not a credibility contest between Crown and Defence witnesses. The Defendant is entitled to the benefit of any reasonable doubt on an issue of credibility arising from the testimony of witnesses heard in the course of this trial. It is not simply a matter of choosing one witness’s version of events over another.

Such an approach would suggest that the Defendant has some burden to persuade the trier of fact that his version of the truth is more accurate and reliable. If the Court does not know whom or what to believe, the law demands that the Defendant be found not guilty. Once again, it is the Crown who must establish guilt. The Defendant does not have to prove his innocence. V. ANALYSIS [ 23 ] The faint marks and redness depicted in the photographs of AB’s forehead and right arm are consistent with the events described by this young witness. AB was not shaken in cross-examination.

This 12 year old was an impressive witness. She was polite and appeared to be mature beyond her years. Much of the child’s version of events was confirmed by the Defendant’s own testimony. [ 24 ] There is no suggestion on either the Crown or the Defence evidence that this child is readily susceptible to bruising or rashes as a result of some pre-existing medical condition. [ 25 ] There is nothing in the evidence to suggest that AB might have had a reason to deliberately distort the evidence. To the contrary, this witness loved her dad. She still does.

Despite the incident bringing her to court, this child describes PP as being a “good” dad—at least when he is not drinking.” Young AB has no reason to want her dad out of her life. This young child had every reason not to tell the truth about this unfortunate incident. This child knew that she was implicating her own dad in an assault. The fact that she said what she said about her dad in court is telling. [ 26 ] When cross-examined on the pictures, AB readily indicated that the red mark on her cheek was caused by frostbite the winter before.

She readily indicated that she did not know how the red marks were caused to her back. There was absolutely no attempt by this young child to embellish her evidence. The evidence with respect to the mark on her cheek was favorable to the Defendant, not the Crown. [ 27 ] It should be noted that the child said in her examination that her dad had only “tried” to bite her on the cheek. There is no suggestion on her evidence that he ever did so beyond what AB says was a “pinching” of some kind.

There is no way of telling on the evidence whether this pinching activity was an activity of a kind that was likely to leave marks on the child’s skin. [ 28 ] There is no reason to suspect that this sober child witness would mistake what happened in the bedroom for something that happened in a different part of the house. There is no reason on the evidence to suspect that this child might be mistaken about her arm being grabbed hard or being struck not once, but twice in the forehead.

It is highly unlikely that this might have happened accidentally when the child was struggling to get away, as suggested by the Defendant. One blow might be an accident, but two blows to the same part of the body have all the hallmarks of purpose and design. [ 29 ] There is no reason to suppose that the child could be mistaken when she said that PP accused her of taking the bottle, as opposed to the cup. This child knows the difference between the two items.

This child had specific knowledge of who brought the bottle to the house and who subsequently took the same bottle away from the residence and why. [ 30 ] There is no reason to suppose that AB might have mistaken an attempt by PP to kiss her on the cheek with an attempt to inflict pain or discomfort through biting. One movement is tender, and is usually accompanied by emotions of love, caring, and respect. A parent’s love, and the physical, verbal and emotional cues associated with love, would be well-known to a child who is raised from birth to be familiar with and to look for their care givers’ attention.

An attempt to bite is accompanied by anger and a desire to punish. It is unlikely that a child would confuse these two emotions. [ 31 ] Children acquire great expertise in reading their parents’ body language. Every parent knows this. In the circumstances of this case,

there is no evidential basis to devalue this child’s ability to read her parent’s emotions from the physical and emotional cues accompanying PP’s actions. AB was certain that the physical and verbal cues associated with the movement of her father’s mouth to her cheek were the product of anger, upset, and a desire to punish. Love was entirely absent. She was adamant in this. She was not swayed from this position by cross-examination. [ 32 ] PP was drunk on the night of August 18. He has admitted that he had been drinking hard liquor for hours.

The Court rejects the proposition that an advanced state of intoxication sufficient to cause staggering and numbness would have no effect upon his memory or mood. This is contrary to the Court’s long experience in dealing with alcohol related crimes. [ 33 ] The Defendant’s testimony is rife with minimization and denial. These are the sad trademarks of an alcoholic. The Defendant minimized the extent of his drinking and he minimized the extent of upset to his daughter. She was not just crying, she was screaming. This screaming was sufficiently loud and persistent to attract the attention of another citizen.

This screaming was not coming from a petulant toddler. This screaming was coming from a mature eleven year old. The Court does not accept the Defendant’s suggestion that the house was “like a microphone” and that it in some way amplified the sounds coming from within it to others outside. [ 34 ] There is no evidence before the Court to suggest that AB was susceptible to temper tantrums.

The Defendant suggests that his daughter’s persistent screaming was simply the result of him admonishing her in a “heavy tone of voice.” Anything is possible, but there is no real evidence to support this explanation for the child’s extreme level of agitation in this case. What is more probable is that the child was seeing, hearing, or experiencing something that caused her to fear for her safety. [ 35 ] For all of the reasons advanced above, the Court has no confidence in the accuracy or reliability of the version of events portrayed by the Defendant.

The Court concludes that the Defendant’s account of what allegedly happened in the early morning hours of August 18 on the couch in the living room is the stuff of fiction. The Court rejects the Defendant’s testimony about what happened and finds that this testimony does not raise a reasonable doubt. VI. CONCLUSION – FINDINGS OF FACT AND VERDICT [ 36 ] The Court makes the following findings of fact. [ 37 ] On the night of August 18, PP was drinking heavily. He became highly intoxicated.

Sometime after the departure of his adult guests, PP went to the bedroom where he accused his daughter, AB, of taking the vodka bottle. PP wanted to continue his drinking. He blamed his daughter for the disappearance of the alcohol. [ 38 ] It cannot be determined from the evidence whether PP had passed out for some time before entering the bedroom to confront AB. This is certainly possible. It would explain PP’s confusion over the whereabouts of the vodka bottle upon waking. [ 39 ] When confronted by her father about the missing bottle, AB began to cry. She was scared by the anger she saw welling within her dad.

In an alcohol infused stupor, PP lost control of his anger. He grabbed AB’s arm with sufficient force to cause bruising. AB struggled to get away. PP then delivered two blows to AB’s forehead with the palm of his hand. These blows hurt her. These blows were sufficiently hard to cause redness to the child’s forehead that was visible to the police (and the camera) some twenty minutes later. [ 40 ] AB started to scream with fear. She was pulled to the bed by PP who tried to bite his daughter as punishment for her alleged misconduct. He did not succeed in doing so.

The arrival of a stranger, attracted by the screams of a child, quickly ended the struggle on the bed. PP went to the door of the house to see who was there. The stranger was sufficiently concerned by what he heard to summon the police. [ 41 ] The Court concludes that the Crown has proved the offence of assault on AB beyond a reasonable doubt and consequently finds the Defendant guilty of count one as charged. [ 42 ] It has also been admitted by the Defence that the Defendant was at all material times bound by an undertaking entered into before a justice.

A condition of this undertaking provided that the Defendant abstain absolutely from the possession or consumption of alcohol.

The Defendant admitted at trial that he was aware that he was not to be drinking alcohol under the terms of this court order. He was sober when he started to drink and was aware that he was breaching this court order in doing so. This Court finds that the Crown has proved beyond a reasonable doubt that the Defendant was in willful breach of his undertaking on August 18 and finds him guilty as charged on count two. Dated at the City of Iqaluit this 4th day of August, 2011 ___________________ Justice R.G. Kilpatrick Nunavut Court of Justice