R v. DC, 2011 NUCJ 22

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: R v. DC, 2011 NUCJ 22 Date: 20110819 Docket: 08-11-31 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: DC ________________________________________________________________________ Before: The Honourable Mr. Justice Kilpatrick Counsel (Crown): M. Bryant Counsel (Accused): S. Cowan Location Heard: Iqaluit, Nunavut Date Heard: July 18, 2011 Matters: Criminal Code, ss. 266 , 733.1

(1) REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

I. INTRODUCTION [ 1 ] DC has been charged with assaulting his common law partner, CG. He defends on the basis that he did not intentionally apply force to the complainant. In the alternative, it is said that if force was applied, this was done in self-defence. II. THE EVIDENCE OF THE COMPLAINANT CG [ 2 ] On December 27, 2010, 18 year old CG had a heated argument with DC in the bedroom of the family home. The couple’s infant son, then 10 months old, was also in the bedroom. Both CG and DC were sober.

CG claims in court to have absolutely no memory of what the couple was fighting about. [ 3 ] At one point during the argument, DC attempted to quit the fight. He wanted to leave the house for a cigarette. CG wanted DC to listen to her. She interpreted DC’s desire to quit the fight as deliberate avoidance of her and her opinion. The fighting continued. At some point a bottle of lotion was thrown against a wall. [ 4 ] As the noise and intensity of the couple’s argument increased, a 16 year old cousin, SB, decided to intervene to take the infant away from the conflict.

SB arrived at the bedroom door and asked for the baby. After some hesitation, DC handed the baby to SB who then left the bedroom with the baby. As SB walked towards the kitchen, DC threatened to take the baby out of the house and away from CG. CG claims to have no memory of why DC threatened to do this. CG claims that she does not know what prompted DC to hand the infant over to SB. [ 5 ] The conflict intensified following DC’s threat to remove the infant. The warring couple left the bedroom and entered the kitchen/living room area. DC seemed determined to take the baby.

CG was equally determined to stop him from doing so. CG blocked DC’s access through the kitchen to SB and the infant. She feared that DC would follow through with his threat to take the baby away. More words were exchanged. CG, by her own admission, was at this point extremely angry at her spouse. [ 6 ] CG then advanced towards her spouse for the express purpose of intimidating him. She wanted to force DC to listen to her. CG is large in stature. As CG moved towards DC, DC braced both of his hands on the counter. He allegedly kicked CG once in the upper chest. The force of the kick propelled CG backward.

CG fell hard to the ground and hit her head on the baseboard heater. CG was momentarily stunned by this blow to her head and soiled herself. [ 7 ] CG alleges that while she was on the ground DC kicked her again as he moved past her to exit the house. CG gives no details of this alleged kick in her testimony. DC took CG’s bottle of antidepressant medication from the kitchen prior to leaving. [ 8 ] After DC left the house, CG got to her feet and tried to run after him. She continued to scream at him. [ 9 ] This was not the couple’s first physical altercation.

CG admits that she has struck DC in the past and DC was given a bloody nose during an earlier fight. CG also admits in cross-examination that just before she was kicked in the kitchen, DC said that he thought she was going to hit him. III. THE EVIDENCE OF SB [ 10 ] Sixteen year old SB does not like DC. There is animosity between them. She is related to CG and considers her to be her best friend. The Court is aware that there are outstanding criminal allegations involving DC in which SB is named as the complainant. [ 11 ] SB admits that she has previously discussed the incident now before the Court with CG.

It is unknown what these discussions involved. SB, like the other participants in the incident, was sober.

[ 12 ] SB says she attended the bedroom out of concern for the infant. She did not want the baby anywhere near the parent’s fight. SB heard DC yelling at CG. CG was screaming back. When SB arrived at the bedroom she saw the baby on the bed. DC was standing on this same bed. SB claims to see DC grab CG’s head with his right hand and slam it into the wall. DC then picked up the baby from the bed. SB repeatedly asked for the infant and, after some hesitation, DC turned the baby over to her. SB then immediately left the bedroom heading for the kitchen. DC followed her to the kitchen area.

He threatened to take the baby. CG then intervened by getting between DC and SB. The witness SB backed up and stepped to the side. She claims to have an uninterrupted view of what followed. [ 13 ] SB saw DC back up and brace both hands on the counter. CG moved to the side in an apparent effort to block any further attempt by DC to get to the infant held by SB. DC delivered a powerful kick to CG who then fell backwards hitting her head. [ 14 ] SB does not confirm CG’s own evidence that she was advancing towards DC when she was struck.

SB claims to have remained in the area after the kick, yet she did not observe DC delivering a second kick to CG following her fall to the ground. SB says that DC exited the house by a door off the living room, not the bedroom, as claimed by the complainant.

The witness SB says DC was walking away from the complainant who was lying on the floor of the kitchen nearest the bedroom exit. [ 15 ] In cross-examination, SB admits that she told the police: “I walked over there and I saw him standing on the bed and he like grabbed her [CG] and like threw her against the wall, so I walked out.” SB confirms that she did not tell the police that she had observed DC slamming CG’s head into the wall.

SB admits that she saw no damage to the wall and no apparent injury to CG’s head. [ 16 ] SB was reminded that she told the police that, during the fight in the bedroom, DC told her that she was a witness to CG damaging a laptop and that she had responded that she did not want to get involved. SB admitted in cross-examination that she heard DC say that he was going to call the police. There is no explanation for why this evidence was not given by this witness in her examination-in-chief. [ 17 ] In cross-examination, SB admitted that she recalls DC telling CG to back off immediately before he delivered the kick.

Yet SB does not recall seeing CG advancing towards DC before the kick. [ 18 ] SB does confirm DC’s taking of the pills, but adds in cross-examination that she heard DC say that he would kill himself with these pills. IV. THE EVIDENCE OF THE DEFENDANT DC [ 19 ] DC is 23 years of age. At all material times he was sober. DC insists that the couple were arguing over who loved who more. The couple was in their bedroom with the baby. It was approximately 7:30 p.m. At one point during the argument, DC voiced a concern about the infant being exposed to drunkenness in the home by the complainant’s mother.

The argument quickly deteriorated into screaming and shouting. [ 20 ] DC says that he tried to quit the fight by leaving the house. The complainant barred his way to the front door. He says that he was then pushed and pulled by the complainant who was trying to prevent him from leaving and the argument continued. [ 21 ] DC says that at one point, while holding the baby, he was slapped hard in the face by CG. He almost dropped the infant. He then put the baby on the bed for fear of more violence from CG. SB arrived at the bedroom door and asked for the baby.

DC says that he willingly gave the infant to SB to ensure that he remained out of harm’s way. DC denies that he ever shoved or pushed CG’s head into a wall as alleged by SB. [ 22 ] DC claims that after SB left the room with the baby he stayed behind in the bedroom with CG arguing for a period of approximately 15 to 20 minutes. The argument ended at one point with both spouses apologizing to each other. DC then announced that he was going out to see a friend. CG got angry and suggested that DC loved his friends more than her.

It is at this point that DC claims that he tells CG that he is going to take the baby with him. The fight erupted again. [ 23 ] DC headed through the kitchen toward the living room area followed by an irate CG. SB and the infant were in the living room. Once in the kitchen, CG intervened by blocking DC’s access to SB. CG was extremely angry. She charged towards DC who says that he

feared an imminent assault. CG is alleged to have had her fists clenched and to have been inviting DC to hit her as she advanced towards him. DC says that he backed up, braced himself on the counter and brought up his leg to protect himself. DC’s leg struck CG in the gut. CG fell backward, hitting her head. DC denies kicking CG in the upper chest as alleged by CG and SB. [ 24 ] DC says in his testimony that he has been struck before by CG and that his spouse has an extremely volatile temper.

The Defendant says that he raised his leg in self-defence, believing that he was about to be assaulted. [ 25 ] DC says that after falling to the ground CG claimed that she could not breathe. DC insists that he immediately turned around and headed for the exit off the living room. He did not walk past the complainant and did not kick CG as alleged by her. [ 26 ] As he headed for the exit, DC observed the complainant’s prescription anti-depressant medication on the counter. He took these pills with him as he departed, believing that there was some risk to the complainant of a suicide attempt.

DC alleges in his testimony that CG has a history of suicide attempts. [ 27 ] DC insisted in his examination-in-chief that on leaving the house he remained outside on the doorstep and called the police himself using his cell phone. He says that he waited for the police to arrive outside the house. [ 28 ] It is admitted by the Defence that this evidence was not true. DC was arrested some seven days later. He was not on the steps of the family home when the police arrived.

It is also admitted by the Crown, at the insistence of the Defence, that there was another recent incident involving this same complainant and the Defendant where DC did call the police and waited for their arrival outside the family home. V. THE BURDEN OF PROOF AND THE ISSUE OF CREDIBILITY [ 29 ] DC 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. [ 30 ] DC has relinquished 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, DC 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. [ 31 ] Even if I reject the Defendant’s evidence, even if I find that it does not raise a reasonable doubt, DC can only be convicted if, on all the evidence, his guilt has been proven to the requisite criminal standard by the Crown. [ 32 ] 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. VI. ANALYSIS [ 33 ] CG’s lack of memory of the events in the bedroom immediately preceding the alleged kick in the kitchen is suspect. The complainant was sober.

She claims to have a good memory of the events in the kitchen. There is no explanation for her lack of memory. The Defendant claims he was assaulted in the bedroom while holding the baby. This explains why he says that he surrendered care of the child to SB moments later. There were mutual allegations of damage to property. Both CG and DC allege that the other hurled a bottle of lotion against a wall before SB’s arrival. There was also some reference to a laptop computer being damaged in a statement given to the

police by SB. Neither Crown nor Defence followed up on this in their examination and cross-examination of the Defendant. According to the Defendant, the complainant physically prevented him from quitting the fight. In the absence of any explanation, I conclude that CG’s lack of memory with respect to the events in the bedroom may be linked to her reluctance to admit her own aggressive behaviour against the Defendant in the period immediately preceding the alleged assault. [ 34 ] The allegation made by SB of DC slamming CG’s head into a wall in the bedroom is not confirmed by any physical evidence.

There is no damage to the wall. There is no injury to the complainant’s head apart from the injury received from the fall in the kitchen. The alleged head slamming is not confirmed by the complainant herself. The in-court description of the incident in the bedroom by SB is different than that provided by SB to the police investigators. [ 35 ] CG admits that she has a history of violence against DC. She admits that immediately before being kicked in the kitchen she had advanced towards the Defendant in an attempt to physically intimidate him.

CG admits that, just before she was kicked, DC voiced some apprehension that he was about to be hit. Based on his previous experience of violence at the hands of the complainant, the Defendant had reasonable grounds to be concerned for his safety. [ 36 ] SB does not confirm that CG was struck while advancing towards the Defendant. Yet this is what the complainant herself admits to doing. DC gives graphic details of what was said by CG, how it was said, and what CG was doing as she moved towards him.

The Court has some difficulty accepting SB’s version of events on this movement of CG, when this is contradicted by both the complainant and the Defendant. At the very least, this contradiction creates a reasonable doubt about what happened. [ 37 ] CG claims to have been kicked on the ground by DC, yet this evidence is not confirmed by SB, who suggests that DC immediately left by the living room door following the kick. DC had no need to walk past the complainant, as alleged by CG. The kick delivered to CG on the ground is not described in any detail by the complainant. This kick is denied by the Defendant.

The only independent witness who is able to confirm the existence of this second kick does not do so. [ 38 ] The Defence alleges that SB may be a partial witness. She has a motive to favour the complainant. She dislikes the Defendant. There are outstanding criminal allegations against the Defendant involving this independent witness. The Court cannot discount the possibility of collusion between two good friends. There has been some discussion between these two Crown witnesses about the matter bringing them to court. [ 39 ] The Defendant’s evidence is also not without some difficulty.

The Defendant, in his testimony, seems to suggest that the complainant ran into his leg (knee?) and that there was no kick. The Defendant suggests that some part of his leg came into contact with the complainant’s abdomen and not her upper chest, as claimed by CG and SB. There is no physical evidence in the form of bruising to confirm which version of the truth is more accurate. [ 40 ] What is apparent from the evidence is that the force of the contact was sufficient to knock the complainant over backwards.

Common sense suggests that a blow from a leg (knee?) to the abdomen might be expected to cause the recipient to double over. A blow to the upper chest, delivered with some force, would be much more likely to cause the body to be propelled backwards resulting in the fall that was observed by the witnesses. [ 41 ] The Court has some difficulty with the suggestion that the couple reconciled and apologized to each other in the bedroom before the final argument resulting in the fracas in the kitchen. The flow of events described by the Defendant from the reconciliation to the kick in the kitchen is awkward.

It does not make a lot of sense. It is not clear how or why the Defendant moves from the proposal to leave the house to see friends, to a desire to remove the baby from his home and his mother. DC suggests that there was a 15 to 20 minute gap between SB’s departure from the bedroom and DC’s arrival in the kitchen to take the child. Both Crown witnesses suggest that the incident in the kitchen flowed directly from SB’s movement from the bedroom to the kitchen with the infant. There was no gap in time.

This evidence makes sense. [ 42 ] DC was certain that he remained outside the house following the incident to await the arrival of the police. This evidence was false and admitted to be so by DC’s own counsel. There is some suggestion in argument that the Defendant might have confused this incident with what happened on another related event of recent origin. VII. CONCLUSION [ 43 ] DC may have committed the offence alleged against him, but that is not the test. Suspicion alone is not enough. The quality of the

evidence available to the Court in this case is not sufficient to meet the high standard required for a criminal conviction. [ 44 ] Some citizens may believe that judges possess divine insight into the soul of witnesses who testify in a criminal proceeding. This is fiction. Decisions must be based on evidence alone, not on intuition or guesswork. The law requires that the Court extend the benefit of any reasonable doubt to the Defendant on an issue of credibility. [ 45 ] The evidence in this case is full of contradictions. There is the possibility of collusion between Crown witnesses.

The neutrality and objectivity of the Crown’s independent witness is in doubt. The Court concludes that it would be dangerous to convict on the strength of the evidence now before it. It is once again the Crown that must prove guilt. The Defendant does not have to establish his innocence.

The law therefore requires that the Defendant be found not guilty of the allegation against him. [ 46 ] Given the turbulent history of this young couple, and the likelihood of further contact in relation to their child, I am satisfied on the balance of probabilities that there is a likelihood of further conflict between the complainant and the Defendant. I therefore exercise my common law jurisdiction to bind the Defendant over to keep the peace towards the complainant, CG. DC is bound over upon a recognizance of the peace in the amount of $1,000 without deposit and without surety.

The conditions of this recognizance are as follows: 1. DC must keep the peace towards CG. 2. He must not attend within 50 metres of CG’s home without her consent or a court order authorizing this. 3. He may have indirect contact with CG for the sole purpose of arranging for access to the child. 4. He must immediately notify the RCMP of any attempt by CG to contact him. [ 47 ] The Defendant DC is directed to attend court in person on August 29, 2011, at 9:30a.m. for the purpose of entering into the common law peace bond (surety of the peace).

Dated at the City of Iqaluit this 19th day of August, 2011 ___________________ Justice R.G. Kilpatrick Nunavut Court of Justice