Her Majesty the Queen - v. -, 2011 SKPC 163

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 163 Date: December 19, 2011 Information: 43170186 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Patricia Oseemeenow Appearing: Darren Howarth For the Crown Amanda Dodge and Vicki Law, Law Student For the Accused INTERIM RULING P.S.

KOLENICK , J BACKGROUND [ 1 ] The accused is charged that, on or about May 9, 2011, at Saskatoon, Saskatchewan, she committed a common assault on Chris Jahnke, contrary to s. 266 of the Criminal Code . [ 2 ] The accused gave notice that she intends to apply for leave under s. 657.3 of the Criminal Code to call an expert on the issue

[ 2 ] The accused gave notice that she intends to apply for leave under s. 657.3 of the Criminal Code to call an expert on the issue of Battered Spouse Syndrome. Before that occurs, the Court will determine in the trial proper whether there is evidence for the Crown sufficiently credible to prove beyond a reasonable doubt the constituent elements of the offence and that the accused had not engaged in self defence, as contemplated in s. 34(1) of the Criminal Code . If the evidence for the Crown does not measure up in that respect, the accused is not guilty regardless of Battered Spouse Syndrome.

If it is, we will need to reconvene for the Court to consider the application under s. 657.3 of the Criminal Code on its merits, and the potential for expert testimony. [ 3 ] Therefore, in this interim ruling, the following issues need to be considered: Is the evidence for the Crown sufficiently credible to prove beyond a reasonable doubt the constituent elements of the offence, including non-consent to the application of force? Is the Crown also able to prove that the accused had not engaged in self-defence under s. 34(1) of the Criminal Code ?

REVIEW OF THE EVIDENCE FOR THE CROWN Constable Chris Sedgewick [ 4 ] Constable Sedgewick of the Saskatoon Police Service arrived on the scene, at 8:36 a.m. The accused and the complainant were both at the location. He spoke with the complainant, who had a small scratch on his neck, roughly one to two inches in length. After a discussion as to what had allegedly occurred, he placed the accused under arrest for common assault. He also took a warned statement from the accused which was entered as a Crown exhibit. It was deemed by consent to be voluntary and admissible.

Prior to providing the statement, rights to counsel had been exercised by the accused when they were at the Police Services building. As well, there were no signs of impairment for either party, but both were visibly upset. [ 5 ] In cross-examination the officer advised that there had been other peace officers at the scene. One of them had taken a statement from the complainant. Regardless, Constable Sedgewick had not spoken to the accused to determine if she had been assaulted.

As well, within nine minutes of arriving at the scene, the officer had concluded that he had reasonable and probable grounds to proceed against the accused. No charge had been laid against the complainant, even though there was some indication in the accused’s statement he had been physically aggressive against her, and uttered a death threat. Chris Jahnke - The Complainant [ 6 ] The complainant is 35 years of age. He has known the accused for five or six years and she is the mother of two of his children.

They have been living separate and apart since this alleged matter occurred. [ 7 ] At the material time, an argument ensued about who he had been out with the prior evening. He denied being out with anyone, but she did not believe his explanation. As the bad feelings grew, they both ended up in the back bedroom, to discuss the situation away from the children. Matters got somewhat out of control. She had swung at him with a closed fist, striking him by one of his eyes with a single blow and clawed him on the neck.

However, he denied striking her whatsoever and made no threats before she had initiated the aggression against him. He had a claw mark on his neck, so he called the police to report a domestic disturbance. He had not consented to being struck. He had merely pushed her away from being struck, but there had been no threats. He agreed as well that he was unsure of some of the events. [ 8 ] In cross-examination, the complainant agreed that, generally he can get angry and lose his temper, as part of being human. He was also shown his criminal record which was entered as an exhibit for the Defence.

It included a conviction for assault with a weapon in 1996, for which he had received a suspended sentence and probation for nine months. [ 9 ] Pursuant to s. 12(1) of the Canada Evidence Act , a witness can be questioned as to whether he has been convicted of any offences. However, that information can only go to the issue of credibility, and not as an indication of bad character or a propensity to commit crimes. Regardless, it would be more prejudicial than probative to give any consideration to adversely affecting the complainant’s credibility on that basis. It will not be considered herein for any purpose.

[ 10 ] In any event, he did agree that money has been a cause of their arguments over the years they had been together. She was upset with his use of marijuana and the belief that he was cheating on her with other women. He was aware that the accused did not trust him and wanted to regain her confidence. The parties have been physical to each other but claimed he did not remember uttering any threats to the accused at the material time. [ 11 ] In re-examination, however, he agreed to perhaps having threatened to kill the accused on the date of this alleged matter.

EVIDENCE FOR THE DEFENCE The Accused [ 12 ] The accused is 30 years of age, with three children, of whom the complainant has fathered two. She currently has the children in her care. The parties had been in a relationship since March 2007, when they moved to Saskatoon. Prior to that, there had been name calling and swearing at each other. It started with arguments and became physical. He would get angry when she tried to spend time with friends or her children. He would spend money on drugs for himself and refuse to buy groceries or was edgy when he was out of drugs.

At that time he was using marijuana on a daily basis. [ 13 ] On three occasions leading up to this alleged matter the complainant had threatened to kill her or take the children and run. He would get very angry about what she was doing and an argument would occur. He would also lock her in the bedroom, yelling, swearing and holding her down on the bed or slam her against the wall, causing some bruises. There were numerous incidents of that nature. He had not actually tried to kill her. He had threatened to kill her and get it over with.

She wanted to run away scared, but he got angry if she tried to leave. [ 14 ] On other occasions, she would try to push away from him when pinned down, and she would attempt to shove away from him. He had threatened to bash in her head with a hammer, and then take his own life. In general, she had suffered more abuse as the relationship had progressed. She had suffered some bruising in the past but did not get her condition checked. He would throw objects in frustration when he was out of drugs. [ 15 ] She had attempted some counselling but it hadn’t worked so eventually she moved out.

In the past she had also called the police but they had told her to work it out. He would promise to change and things would be better, but there was no improvement. They are separated at present and she is living in a shelter. [ 16 ] On May 9, 2011, she had gotten her 6 year old ready for school and asked the complainant where he had gone. He denied being away. They ended up together in the back bedroom, with the door closed. He said words to the effect “I should have just killed you”. She was afraid it would go further with more violence.

Therefore she pushed away with two hands and hopped up on the bed to get away from him. He was in her face yelling. He grabbed her arm and twisted and banged her against the wall. However, she had not punched the complainant at any time whatsoever. Immediately thereafter they left the bedroom and he got control of the cordless phone. He called the police and said words to the effect “Pack your stuff, you’re going to jail”. [ 17 ] Since then the complainant has followed her on occasion suggesting they get back together. In the meantime she is taking domestic violence counselling.

He has not had much contact with the children, despite arrangements having been made for that to occur. [ 18 ] In cross-examination the accused confirmed she had been the subject of an undertaking. However the complainant had contact with her on a couple of occasions which she had reported to the police. She agreed also that in the past there had been physical and emotional abuse both ways. [ 19 ] In that regard, she would push him sometimes because he would get in her face. The police would be called and they would

be told to work out their differences, or speak to Social Services. When they had been separated eventually there would be reconciliationand she would return. She denied ever making threats, because that would only make it worse for her. She would only be physical withhim to avoid getting hurt. With the threats he was making anything seem possible, including death. She agreed as well normally bothparties would be intoxicated, which made the situation worse. On this occasion she had simply pushed him away because he was in herface.

She insisted that her reference in the statement she provided to the police of “trying to choke” the accused was using her hands atthat location to push him away because he was in her face. In re-examination she confirmed that same course of action. OTHER EVIDENCE [20] The accused has also called as a witness her sister, Georgina Oseemeenow. She testified as a character witness, but apparentlyin the context of the potential Battered Spouse Syndrome issue.

Therefore the evidence is on the record if needed, but was notparticularly helpful for present purposes because it does not address the accused’s character in the way evidence of that nature normallywould. ANALYSIS Is the evidence for the Crown sufficiently credible to prove beyond a reasonable doubt the constituent elements of the offence, and inparticular, that the complainant had not consented to the application of force?

Is the evidence also sufficiently credible to prove that theaccused had not engaged in self-defence as set forth in s. 34(1) of the Criminal Code? [21] My thanks for the material filed by the accused in these proceedings which is greatly appreciated. As well, in R. v. Berke(R.K.) (2010), 2010 SKPC 131 , 364 Sask. R. 116, I had occasion to consider and review the appropriate legal principles notingas follows, commencing at para. 24: [24] The accused is charged with having committed common assault contrary to s. 266 of the Criminal Code. The constituent elementsfor that offence are set forth in s. 265(1)(

a) of the Criminal Code which provides as follows: 265.

(1) A person commits an assault when (

a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly. [25] Of the various provisions which relate to self-defence in the Criminal Code, reference has been made by the defence to s. 34(1): 34(1) Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force heuses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself. [26] In R. v. Walker (T.F.) (2001), (SK PC), 202 Sask.

R. 247, I had made the following general observations whichapply to all self-defence assessments, commencing at para. 24: [24] These general principles therefore must be considered herein, in the context of the self-defence provisions of the Criminal Code. Inthis regard, once again, there is no onus on the accused to prove that he acted in self-defence. Rather, the burden is on the Crown todisprove beyond a reasonable doubt that the manner in which the accused conducted himself did not constitute self-defence as set forth ineach of the prior-mentioned provisions of the Criminal Code.

Likewise of course, every case will depend a great deal on its individualfacts. [25] In Criminal Proceedings and Practice in Canada (2nd), Mr. Justice E.G. Ewaschuk refers to various legal principles which mayhave relevance herein. In this regard, he noted that the defence of self-defence is unavailable in the absence of an assault by the victim,

or a “reasonable anticipation of a threatened assault by the victim” although an “honest and reasonable mistaken belief” that an assault isin progress or is imminent may render self-defence available in the circumstances. The proper test in this regard is whether the accused’sbelief was subjectively honest and objectively reasonable. (Ewaschuk, paras. 21:5050 and 21:5190). [26] As well, the amount of force which is used must not be disproportionate or excessive in relation to the force of the aggressor, andrecklessness as to the amount of force necessary to defend oneself may deprive the accused of the defence.

However, the accused is notrequired to measure the force used in the necessitous circumstances to a nicety, because the frenzy of the occasion may not allow fordetached reflection.

Further, in assessing whether reasonable force was used to defend oneself, the resulting injuries are notdeterminative. (Ewaschuk, paras. 21:5150 and 21:5180). [27] The first priority for the Court, however, is a consideration of credibility of the various witnesses who have testified herein. [28] As noted, in general the burden is on the Crown to prove the constituent elements of the offence beyond a reasonable doubt withcredible evidence, and the accused is presumed innocent until proven guilty. In assessing credibility, the Court is guided by theprinciples restated in R. v.

McKenzie (P.N.) (1996), (SK CA), 141 Sask. R. 221 (Sask. C.A.) (from R. v.

Rose (A.)(1992), (BC CA), 20 B.C.A.C. 7 (B.C.C.A.)), para. 4: First, if you believe the accused, obviously you must acquit; Secondly, if after a careful consideration of all of the evidence, you are unable to decide whom to believe, you must acquit; Thirdly, if you do not believe the evidence of the accused but you are left in reasonable doubt by it, you must acquit; Fourthly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidencewhich you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [29] The determination of credibility does not involve the Court opting for one version of events or the other.

Rather, the Crown mustprove that its evidence is credible, and there is no onus on the accused whatsoever in that respect. Even if the Court prefers the evidenceof the Crown, it must still consider whether the evidence for the defence raises a reasonable doubt. Therefore, credibility of the materialwitnesses needs to be considered, in that context. CONCLUSION [22] In assessing credibility on that basis it is, of course, apparent that the parties have a long history of hard feelings andanimosity.

As well, each was attempting to provide their impression of what allegedly occurred in a fairly brief traumatic encounterbetween them, casting back their minds many months. None of those aspects lend themselves to the ability to recall important detailswith precision and clarity, even for honest witnesses. [23] Of course there are significant differences. The complainant claimed that the accused had initiated the aggression, strikinghim a single blow near his eye with a closed fist and clawing his neck.

He disputed making any threats until re-examination when heconceded there may have been some. [24] Conversely, the accused claimed that she had only hit at the complainant after he said words like “I should have just killedyou” to which she struck at him for fear of her own physical safety. [25] In general there were some problems with both parties’ evidence. The reference in the accused’s statement to the police thatshe had “started trying to choke” the accused, is of concern.

However, her description in both the statement and her testimony as to thedetails of their physical skirmish are sufficiently similar to have a ring of truth about it. Particularly, in both, she had initiated thephysical contact with the complainant because of his death threats.

[ 26 ] In the same context, as noted, the complainant had initially denied any suggestion of having uttered death threats to the accused and then conceded in re-examination that he might have done so. That was an important omission in the evidence which undermined the relative worth of his testimony. As such, he may not have been the innocent victim of the accused’s aggression claimed in his testimony. The death threats made by the complainant were a matter of real concern to the accused, and rightly so.

The complainant apparently making them would suggest that he may have consented to the physical aggression which had followed, as a consent fight between the parties. The minor injuries which he had suffered were consistent with the accused having pushed/choked the complainant out of reasonable fear for the death threats which he had just made, either in a consent fight, or self-defence. [ 27 ] Therefore, applying the principles in R. v. McKenzie , supra, the Court does not know who to believe.

In those circumstances the accused must receive the benefit of the doubt and is not guilty of the charge of common assault contrary to s. 266 of the Criminal Code . As well, there will be no need for the Court to deal with the allegation by the Defence that the accused had suffered from Battered Spouse Syndrome. ___________________________ P.S. Kolenick, J