2015 QCCQ 3408, 2015 QCCQ 3408

R. c. Taylor 2015 QCCQ 3408 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF ABITIBI TOWN OF MISTISSINI Criminal Division No: 640-01-028354-133 DATE: March 26, 2015 ______________________________________________________________________ BY THE HONOURABLE LUCILLE CHABOT, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN COMPLAINANT v. LISA TAYLOR ACCUSED ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The accused stood trial on one count of assault with a weapon (s. 267

a) Cr. C . and one count of assault causing bodily harm (s. 267

b) Cr. C. ). [ 2 ] On October 7, 2012, the complainant, Mrs. Natasha Mattawashish, was injured by the accused. [ 3 ] Mrs. Mattawashish was at Laurence Linton’s place with her boyfriend. The three of them were in the porch smoking and drinking a beer. [ 4 ] The accused, who is Mr. Linton’s sister-in-law, dropped by with some people. After a short while, these people left, but the accused decided to stay behind. [ 5 ] She started to insult Mr. Linton saying, amongst other things, that he was not a good father. She was asked to leave many times by Mr. Linton, but did not comply. [ 6 ] Mrs.

Mattawashish decided to go and talk to the accused to make her leave. The accused insulted her. A fight occurred and the accused inflicted wounds to the complainant using a knife. [ 7 ] As a result, the complainant sustained a 7 cm laceration on the chin, a deep 3 cm laceration on the head and a very deep laceration on the nape of the neck. There were two other wounds, one on her left arm and one on her abdomen. From the Mistissini Medical Clinic, she had to be transferred by ambulance to Chibougamau Hospital for a scan.

Stitches were required on her chin and her head. [ 8 ] The accused pleads that she was acting in self-defence. [ 9 ] The prosecution produced two witnesses: Natasha Mattawashish, the complainant, and Laurence Linton. [ 10 ] The accused testified on her own behalf and had her sister, Michelle Taylor, Linton’s spouse, testify. [ 11 ] On certain points, the evidence is contradictory. There are also discrepancies between testimonies given in Court and previous statements made by the witnesses. As for the accused and Mrs. Mattawashish, both were under the influence of alcohol at the time of the events.

Natasha Mattawashish: [ 12 ] She started going towards the accused. She first states that Mrs. Taylor pulled her and they fell to the ground, the accused on top of her. [ 13 ] She continues, saying that she does not quite remember that part and then says that she pushed Mrs. Taylor. [ 14 ] In her statement given to the police, she had said that she punched Mrs. Taylor. Asked to explain the discrepancy, she says that the police did not understand well. She testifies that she only thought of punching Mrs. Taylor. [ 15 ] When on the ground, with the accused on top of her, she punched Taylor to defend herself.

She then felt a pain on her chin, on her head and on the nape of her neck. She understood that the accused was stabbing her and she thought that she would die. She cried:

“Lisa has a knife!” and Mr. Linton and Paul came to rescue her. [ 16 ] She was brought in the house and given towels as she was bleeding a lot. The two men went out and shortly after, Paul and Mr. Linton ran back to the house. Paul had a cut on his hand. [ 17 ] In cross-examination, she says that she had around six beers in a two-hour period of time. At the end of her testimony, she modifies her version stating that she had around ten beers in a two-and-a-half-hour period.

She adds that since she is used to consuming alcohol, she was only tipsy at the time of the events. [ 18 ] The medical report from Mistissini Medical Clinic filed as exhibit P-2 establishes that Mrs. Mattawashish was collaborative, emotional, and able to express herself in a coherent manner.

Laurence Linton: [ 19 ] The witness was in the porch with the complainant and Paul while his children were sleeping in the house. [ 20 ] At first, he declares that he didn’t drink before the fight, but when questioned about his statement given to the police, he admits that he was drinking a beer with his friends. [ 21 ] He does not remember a group of people coming to his place with the accused. In his version, the accused came alone, by a shortcut from the backyard.

He is also confused about the time of the event first declaring that his friends came around 9:30 p.m., but when again confronted with his previous statement, he remembers that the event took place around 3:30 a.m. which is in accordance with the other testimonies. [ 22 ] He has known the accused since 1999. He describes his relationship with her as “so and so”. He asserts that the accused was intoxicated, not able to stand right, slurring and slouching. He says that she was moody and not herself. [ 23 ] For no apparent reason, the accused suddenly started to insult him and his friends.

He asked her many times to leave. He states that she was not invited and her presence was not welcome especially when she started insulting them. [ 24 ] At one point, the accused said that she was there because her sister, who was at the hospital in Montreal, asked her to take care of her family. The witness made a remark about her state of intoxication. Even if she was clearly asked to leave by Linton, the accused stayed and continued to insult them. In an attempt to remedy the situation, Natasha decided to go outside, in the front yard, to talk to the accused while he and Paul stayed in the porch.

When Natasha left the porch, he told her not to fight with his sister-in-law. [ 25 ] After 2-3 minutes, he heard Natasha yelling “She has a knife!” He went to help her and saw Lisa pulling Natasha’s hair. He saw the knife and grabbed the accused trying to separate the two women. [ 26 ] He says that Lisa kept the knife and was asking for her purse. So, he asked Paul to throw the purse, hoping that she would leave. Right after, he and Paul ran into the house and called the police. [ 27 ] He did not see any injury or bruises on the accused.

Michelle Taylor: [ 28 ] She is the accused’s sister and Laurence Linton’s spouse. [ 29 ] At first, she states that on October 7, 2012, she was either at the hospital or at home, she does not remember well. From the other witnesses, we know that she was hospitalized at Douglas Hospital in Montreal at the time of the event. She cannot state when she left the community for the hospital nor can she say when she returned. [ 30 ] Her testimony cannot help the Court because she can only say how her front yard was when she left for the hospital and how it was when she came back.

But, as we do not know what the situation was on the day of the event, this testimony is irrelevant. Lisa Taylor: [ 31 ] On the evening of October 6, 2012, she went out with friends to a party. After the party was over, some friends wanted to find a place where to go to the bathroom and have a cigarette, so she brought them to Mr. Linton’s place. They were six people including her. Some of these people were doing drugs inside the house. At one point, they left and she decided to stay behind. [ 32 ] She went outside reproaching Mr.

Linton that there was a group of strangers in his house and that the children could be in danger. When she did so, the said strangers were already gone. [ 33 ] As he was not paying attention to her, she started to speak up and says that Natasha got mad at her. She says that Mrs. Mattawashish grabbed her by the shoulder and punched her. She blocked but she was destabilized and pulled Natasha to the ground. She states that Mrs. Mattawashish was kicking her chest and her head and that the complainant was on top of her. It is difficult for the Court to imagine how Mrs.

Mattawashish could have kicked her if both fell to the ground. [ 34 ] She says that Paul and her brother-in-law were there watching the fight and blocking the way out of the front yard. [ 35 ] She adds that she wanted to scare Natasha away from her so she took her knife and opened it. She thought that Natasha would run away which was not the case. She denies having stabbed Natasha saying that they were entangled and it is how the injuries occurred. [ 36 ] She says that Linton tried to take the knife but she wouldn’t let it go because she didn’t know what he would do with it.

Paul and Linton dragged her behind the house, the way she came from, and threw her her purse.

[ 37 ] She declares that she carried a knife in order to protect herself because of past bad experiences and because she knew that she would take shortcuts to go to the party and to come back.

She states that there are crazy people out there in Mistissini. [ 38 ] She describes her state as being tipsy, not intoxicated enough to black out. [ 39 ] When asked where the people she brought to Linton’s place were when the fight occurred, she responds that she thinks that they had left when they finished the drugs, before the fight. [ 40 ] She did not go to the police station because police officers always say that they do not want to waste their time with people under the influence of alcohol and to come back when they have a clear mind. [ 41 ] She did not go to the medical clinic because Laurence Linton, the prosecutor’s witness, would have told her that a concussion must be taken care of at home.

When asked why he would have said so, she said that a member of Laurence’s family is a nurse. [ 42 ] She declares that after the fight she went to a friend’s place; they took a walk together. After, she went home where she slept a very long time saying that she woke up at 5:00 a.m. the day after, which would have been October 8, 2012. [ 43 ] She says that the police only came when there was snow on the ground, that is to say around two weeks after the event. DECISION: [ 44 ] The accused has nothing to prove.

The presumption of innocence protects the accused against a finding of guilt until the prosecution fulfills its burden of evidence by proving the essential elements of the offence to a standard of proof of beyond a reasonable doubt.

The accused is never required to give evidence as the onus of proof is on the prosecution to present evidence which, if accepted, would meet the standard of evidence. [ 45 ] Given that the accused testified and given the fact that the accused’s evidence is in conflict with the evidence of the prosecution’s witnesses, the Court will have to apply the three-step test of the Supreme Court in R. v.

W. (D) . [1] [ 46 ] But before that, the first issue is whether the prosecution has met the burden of proving beyond a reasonable doubt that the accused assaulted the complainant as alleged in the information. [ 47 ] If the Crown meets this requirement, the second issue to be decided is whether the accused was acting in self-defence. The accused only has to demonstrate that her defence possesses an air of reality.

If so, the prosecution is required to prove beyond a reasonable doubt that the accused’s conduct fails to meet one or the other elements of self-defence. [ 48 ] The Citizen’s Arrest and Self-defence Act [2] repealed former sections 34 and 37 Cr. C . and replaced them by

section 34 which came into force on March 11, 2013. [ 49 ] Sections 34 (1) and 37 of the Criminal Code , as they existed in 2012, provided that one person was justified to use force to defend himself, if he used no more force than necessary to prevent the assault or the repetition of it: 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 no more than is necessary to enable him to defend himself. 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 this

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. [ 50 ] The new

section 34 provides: 34.

(1) A person is not guilty of an offence if: (

a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person; (

b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and (

c) the act committed is reasonable in the circumstances.

(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors: (

a) the nature of the force or threat; (

b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;

(

c) the person’s role in the incident; (

d) whether any party to the incident used or threatened to use a weapon; (

e) the size, age, gender and physical capabilities of the parties to the incident; (

f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force andthe nature of that force or threat; (f.1) any history of interaction or communication between the parties to the incident; (

g) the nature and proportionality of the person’s response to the use or threat of force; and (

h) whether the act committed was in response to a use or threat of force that the person knew was lawful. (3) Subsection (1) does not apply if the force is used or threatened by another person for the purpose of doing something that they arerequired or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act thatconstitutes the offence believes on reasonable grounds that the other person is acting unlawfully. [51] The event in the case at bar took place before March 11, 2013, and the trial was held in January 2015. [52] Should Mrs. Taylor have the benefit of the new provision or does the former

section 37 apply? [53] The Ontario Superior Court in Pandurevic[3] wrote: “The amendments in issue here do not remove, virtually remove or substantively alter the core elements of the defence of self-defence.Rather, as the Guide prepared by the FPT Justice officials argues, they facilitate the application of those core elements and « give effectto [them] in a more transparent and consistent way. » […] (…), I am of the view that to apply the amendments prospectively only would frustrate the remedial aims of the legislation by leaving inplace for several more years the significant mischief that Parliament manifestly meant to eradicate.

That is a factor that strongly suggestsan intention for a retrospective application.” [54] In R. v.

Parker[4], Judge David Paciocco is of the opinion that the most generous provision should apply: “(…) To put things more simply, it would defeat the objectives of the presumption against retroactivity to apply it to new defences incriminal cases and it would result in actions, considered justifiable and legal at the time of trial, to be condemned and punished byconviction. […] Although this provision does not address changes in defences, the values it reflects are indistinguishable from theprinciple I am describing; accused persons should receive the benefit of the law in place at the time of their alleged offence, as well asthe benefit of new substantive provisions in effect at the time of their trials that protect their liberty interests. […]” [55] There is only one decision of an Appeal Court rendered on this very subject: R. v.

Evans[5] was released by the BritishColumbia Court of Appeal on February 10, 2015, while the present file was taken under advisement for judgment. [56] This decision establishes that the new

section 34 has no prospective effect given the fact that the changes in law weresubstantive. [57] The Court notes that: “Trial courts in this and other jurisdictions have taken three different approaches with respect to the application of the new provisionswhere the events in issue pre-date their coming into force. In addition to the ruling which is the subject matter of this appeal, thefollowing non-exhaustive list reflects those approaches: New provisions apply prospectively only: R. v. Williams, 2013 BCSC 1774 ; R. v. Carriere, 2013 ABQB 645 ,573 A.R. 250; R. v. Simon, 2013 ABQB 303 , 558 A.R. 384; R. v.

Patterson Jones, 2013 QCCQ 6632 ; R. v. Wang,2013 ONCJ 220 . New provisions apply retrospectively: R. v. Dario, 2014 BCSC 2099 ; R. v. Pandurevic, 2013 ONSC 2978 , 298C.C.C. (3d) 504; R. v. Trudell, 2013 ONSC 6092 ; R. v. Paskimin, 2014 SKQB 78 , 440 Sask. R. 152; R. v. Hunter,2013 NWTSC 79 . A judge sitting alone should consider both the former and the new provisions (in effect, giving the accused the benefit of both): R. v.Parker, 2013 ONCJ 195 ; R. v. Sanderson, 2013 MBQB 139 ; R. v. Rothgordt, 2014 BCSC 1215 ; R. v.Kahnapace, 2014 BCSC 2410; R. v.

Urquhart, 2013 BCPC 184 .” [58] In Evans, the parties pleaded that on the former self-defence section, the force used to repel the assault was an ultimatecondition for this defence to apply: it had to be a proportionate force. Under

section 34, it is one of the factors: was the force reasonablein the circumstances? [59] Even though a judgment rendered by an Appeal Court of another province does not bind the Court because the stare decisis ruledoes not apply, it has nonetheless a moral authority.

[ 60 ] In some circumstances, as it is the case here, the application of the former

section 37 or the application of the new

section 34 will result in the same verdict. [ 61 ] The Court still shares the opinion of Judge Paciocco that the accused can rely on either provisions of self-defence and the Court can apply the most generous one for the accused. [ 62 ] Under section 34 (1), the accused is justified in acting in self-defence if these three basic conditions are met. [ 63 ] The core of this defence is the belief of the accused, but this belief must be based on reasonable grounds.

The amount of force used to repel an attack must also be reasonable. [ 64 ] Subsection (2) establishes a non-exhaustive list of factors that have to be considered and weighed by the Court to decide if the force used was reasonable. [ 65 ] As for

section 41 that existed at the time of the offence, the Court considers that it cannot apply. If it is true to say that the accused was asked many times to leave and then became a trespasser, the Court considers that Mrs. Mattawashish was not acting in application of this

section because of the warning given by Linton not to fight his sister-in-law. So, she was neither assisting him nor was she acting under his authority. [ 66 ] As the accused testified, the Court will assess her evidence first. [ 67 ] When analyzing a testimony, the Court has to consider if the testimony is consistent, credible or if the witness’ answers were evasive, whether there are unexplained lapses of memory, inconsistencies or incoherences. [ 68 ] First, the Court reminds that the accused was under the influence of alcohol at the time of the event.

She said that she reproached her brother-in-law because there were people in the house. In fact, she was the one who brought these people in Mr. Linton’s house. They left, she decided to stay behind. In her account, it is after they left that she started insulting Mr. Linton about the strangers in the house and his parental capacities. Why insult Mr. Linton if the people already left? Why insult Linton’s friends? She gave no explanation. [ 69 ] She was asked to leave, but decided not to.

When she says that she was there to look after her sister’s children, it is inconsistent with her state of intoxication at that time. It is also inconsistent with her statement that Mr. Linton always wanted her to be beaten-up. Why stay? Why insult Mr. Linton if she has reason to think that he always wanted that someone beat her up? [ 70 ] The Court cannot believe the account of the events given by the accused.

Her testimony also contains cliché, or unfounded general statements which can be viewed as peculiar, for instance: • The fact that she decided to carry a weapon to protect herself because of past bad experiences, but despite these bad experiences she decided to take dark shortcuts to go to the party and to come back. • The sketch she made indicates two ways to go out of the front yard, but when she testified, she said that the two men were blocking the only way out. Moreover, the defence never questioned Mr.

Linton on this element only presented in defence. • Her statement that Mistissini is full of crazy people is clearly a false generalization. • She said that she was kicked on the chest and head by Natasha Mattawashish, but Linton saw no bruises or injuries on her nor did she decide to go to the police station or to the hospital. She was met the very same day by police officers who would have noticed such bruises if any.

They were not called as witnesses. • Her statement that police officers do not deal with people under the influence of alcohol is also a false generalization and is a very poor explanation for not going to the police station. We know that police officers are frequently involved with intoxicated people. It is part of their daily job. • The fact that she decided not to go to the medical clinic because a concussion has to be cured at home is clearly unbelievable. She said that her brother-in-law, Mr. Linton, told her such a thing, but no questions were asked on this subject by the defence to Mr.

Linton when he testified. • She cannot have slept until October 8 as she was met by the police officers on October 7 and gave a statement on that date. Moreover, the knife was retrieved by the police officer on the same date (exhibit P-1). • She testified that the event occurred at daybreak, around 4 a.m.

This part of her testimony is impossible since daybreak occurs later than 4 a.m. during the month of October. • When she was asked by her own counsel in what state she was that night, she tried to elude the question. • She says that she was arrested two weeks later, when there was snow on the ground, which is not possible as the police intervened on the same day: October 7, 2012. [ 71 ] She also stated that her brother-in-law always wanted such an event to happen to her, meaning to be beaten up.

This is inconsistent with her decision to go there and with her decision to stay behind when her friends left. [ 72 ] She said that she went to her brother-in-law’s place in order to check on her nieces or nephews, but she brought people who were under the influence of intoxicating substances and did drugs at that place. It is clearly incoherent with the fact that she wanted to protect her nieces or nephews.

[ 73 ] The Court does not believe the accused when she says that the two men were blocking any way out. She just stated that she was on the ground, kicked on the head and chest: it is difficult to comprehend how she could have noticed that if she was being beaten in such a way. [ 74 ] The Court is not left with a doubt after having assessed the accused’s evidence in view of the whole evidence. [ 75 ] The Court cannot believe that the wounds inflicted to Mrs. Mattawashish happened because they were entangled; this is not coherent with five wounds at so many different places on Mrs.

Mattawashish’s body and with the deep wound on the nape of her neck which required a certain force to be applied. [ 76 ] The use of a knife makes the risk of inflicting bodily harm reasonably foreseeable. [ 77 ] Even if Mrs. Mattawashish started the fight, she couldn’t consent to the injuries inflicted. [ 78 ] The force used is clearly disproportionate, excessive, undue. Evidence of the prosecution: [ 79 ] Mrs.

Mattawashish was also under the influence of alcohol, but to a lesser extent than the accused as it appears in the medical report filed as exhibit P-1. [ 80 ] There are also inconsistencies in the version she gave the Court as to whether she pushed or punched the accused. On this point, the Court will give the benefit of the more favourable version for the accused and take for granted that she was punched by Mrs. Mattawashish. [ 81 ] This being said, the Court considers that the force used by the accused was clearly disproportionate and does not qualify as self- defence. [ 82 ] As for Mr.

Linton’s testimony, the discrepancy about the fact that he had one beer before the event is of very minor importance in regard to the whole event. The fact that he does not recall that other people came to his place that night is preoccupying.

But the fact that this part of the account given by the complainant is corroborated by the accused herself renders this discrepancy in Linton’s version of little importance. [ 83 ] Other than this inconsistency, the complainant’s version is corroborated by Linton or by the accused on most of the facts reported in her testimony. [ 84 ] The Court is of the opinion that the prosecution met its burden of proving beyond a reasonable doubt the essential elements of the alleged offences. [ 85 ] The defence of self-defence raises no reasonable doubt in the Court’s mind because the force used was disproportionate, unreasonable and not necessary when examined in regard of both sections 37 , which was in force in October 2012, and

section 34, which was in force at the time of the trial. [ 86 ] For these motives, the Court: [ 87 ] DECLARES the accused guilty on both counts. __________________________________ LUCILLE CHABOT, J.C.Q. Mtre. Flore Tardif Director of Criminal and Penal Prosecutions Counsel for the prosecution Mtre. Myriam Gaudreault Counsel for the accused Date of hearing: January 8, 2015