r v. J. B., 2017 QCCQ 12827

R. c. J.B. 2017 QCCQ 12827 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC CITY OF MONTRÉAL "Criminal and penal division" N° : 500-01-106488-148 DATE : September 14, 2017 ____________________________________________________________________ BEFORE THE HONOURABLE JUSTICE DANIEL BÉDARD, J.C.Q. ____________________________________________________________________ THE QUEEN Prosecutor v. J. B. Accused ____________________________________________________________________ JUDGMENT ____________________________________________________________________ INTRODUCTION [ 1 ] Madam J.

B. faces the following accusations: “1- On or about May 31, 2014, in Montreal, district of Montreal, in committing an assault on X and B. H., did carry, use and/or threaten to use a weapon, committing thereby the indictable offence provided by

section 267a) of the Criminal Code . 2-On or about May 31, 2014, in Montreal, district of Montreal, in committing an assault on X , did cause bodily harm to the sais person, committing thereby the indictable offence provided by

section 267b) of the Criminal Code . 3-On or about May 31, 2014, in Montreal, district of Montreal, did commit an assault on S. P., committing thereby the indictable offence provided by

section 266a) of the Criminal Code . [ 2 ] There is no litigious issue in relation with the constitutional rights of the accused. [ 3 ] Furthermore, at the beginning of the trial, the Crown and the defence file written admissions that establish that X suffered first and second degree burns when splashed by hot sauce. [ 4 ] Also admitted, the contents of the telephone calls made by the accused and S. P. to 911 and the police report. Finally the accused admits that her statement to the police officer, dated May 31, 2014, was made of her own free will and in the respect of her constitutional rights.

CONTEXT [ 5 ] The accused is the grandmother of X and the mother of B. H.. S. P. is the spouse of her daughter. [ 6 ] The four of them live together in the apartment of the accused and on May 31, 2014, an argument occurs and the situation degenerates. ISSUE TO RESOLVE Does the evidence tendered by the Crown convince beyond a reasonable doubt, that the accused on May 31, commits the acts described in the accusations and is guilty? FACTS [ 7 ] The first witness is B. H. , daughter of the accused. As of May 31, 2014, she lives with her mother. There is also her spouse S. and their daughter X.

Their presence in the apartment of the accused follows a rough path when living in her own apartment.

[ 8 ] She affirms that the fight starts in the afternoon, when her mother comes in the apartment and goes in her bedroom to lay down on her bed. [ 9 ] The accused yells or states that S. is not really S. but her twin. At the time, the witness is in the kitchen with her spouse and their daughter, while the accused is in her bedroom, yelling at them. The accused comes in the kitchen, pushes S. and yells. The witness leaves the kitchen with her daughter, then comes back while her daughter is outside.

The accused pushes and punches S. who grabs her by the arms. [ 10 ] When the accused arrives in the kitchen, she pushes S. in the chair, using both her hands on the chest of S.. The witness screams and her daughter comes back in the apartment, when she hears her mother yell. [ 11 ] The kitchen is very small, the chair on which S. is pushed is between the dryer and the table. She brings her daughter out when the accused pushes S.. The witness hears S. pleading the accused to stop, so she comes back in. The kitchen door is only a few steps away from the sink. Her daughter stays out.

It is a very small kitchen. [ 12 ] S. tells the accused to calm down, while the latter is still pushing her with her hands. [ 13 ] The witness comes in the kitchen by the door, tells her mother to stop. The accused takes the frying pan on the stove and throws the steak in the sink, while holding the pan. She tells her mother to relax and adds that she is acting crazy. The accused continues to scream, her daughter X comes in and tells her grandmother to calm down. X is in front of her mother who is in front of the sink, while the accused is in front of the stove.

The accused tells her daughter that she is not her and throws the pan containing the sauce for the steaks in her direction. [ 14 ] The witness does not think that the accused sees her daughter X standing in front of her. When the sauce lands on her skin, X starts to scream. The witness uses her left hand to stop the pan from hitting her daughter. X runs outside and the witness follows her. [ 15 ] The accused also follows and tells her granddaughter that she is sorry and that she did not mean to hurt her.

At the same time she is still angry. [ 16 ] According to the witness, her mother had been gone for three days, drinking. She was loaded and gone, being very drunk. [ 17 ] The kitchen is between two rooms and during the event, the witness is at the most, five steps from her mother. It is S. that calls the ambulance. [ 18 ] Cross-examined, the witness states that she leaves her apartment to live with her mother because at the time, there are serious problems with the electricity and the repairs are not done.

X is autistic and the programs that she is attending, create financial difficulties, so they are planning to go back in the same neighborhood, as soon as possible, where the services are located. At the time of the incident, they are on the premises since the end of March. They have two cats with them. Before the incident, everything is going well with the accused, which is something new, according to the witness. [ 19 ] She denies always fighting with S. and recognizes that the accused is concerned with her lifestyle.

She denies that the cats use the bathtub as a litter. [ 20 ] For the witness, that day before the incident, is a great day and she does not know the origin of the argument or fight. Never has she touched her mother. [ 21 ] The second witness is S. P. . Just before the incident, she is in the kitchen, cooking. [ 22 ] The accused comes in the apartment and starts “putting them down”. B. takes her daughter out of the kitchen. The accused is in her bedroom situated at the left of the kitchen. She then leaves her bedroom, enters the kitchen and hits her.

The accused is very drunk, has a slurred speech, makes no sense and is angry. When the accused enters the kitchen, the witness is sitting on a chair. The accused goes to the stove, smashes her fists on the stove, while her back faces the witness. [ 23 ] The witness screams at B. to leave and approaches the accused, takes her wrists, so that the two pans are put back on the stove. The witness takes the accused by the arms, begs her to stop. At that point, she is behind her. [ 24 ] The accused puts the pans on the stove and the witness prepares to leave.

The accused puts herself in front of her, preventing her to exit the kitchen. She is still angry and screaming. [ 25 ] The accused again grabs the two pans and at the same time X comes back in the kitchen. The pan with the sauce is in her left hand and the pan with the steaks in her right hand. One stake flees out the pan. The sauce goes first and at the same time X comes in behind her mother, then puts herself in front, which triggers B. to block the pan with her hand. The accused at the time, is looking at B. and tells her that she is not her.

The accused goes outside to her granddaughter, while the witness calls the ambulance.

The accused comes back in and smacks the witness on the left cheek, telling her that she did not burn her granddaughter. [ 26 ] The Court listens to the phone call made by the witness to 911 and can easily hear the screaming and the shouting following the incident. [ 27 ] Cross-examined, the witness states that they left their apartment due to electrical problems not repaired by the owner. [ 28 ] She denies that the litter was an issue with the accused. [ 29 ] The accused did not throw the pans the first time she seizes them, but the second time.

The accused does not walk with the pans, she stays in front of the stove. The kitchen is very small and consequently everybody is a few steps from the other. The door is at the left of the stove, only a few steps away.

[ 30 ] The accused testifies in defence . [ 31 ] On May 31, 2014, B. and S. are living with her, since two or three months. It is chaos. They are always fighting and screaming. They fight twenty four hours a day. The apartment stinks because of the cat litter and the cats also use the bathtub as a litter. [ 32 ] The accused decides that she is going to get rid of the stink that comes from the litter. Between her and the litter, we can count approximately 10 steps. The sketches produced in evidence, puts the kitchen door beside the sink and the cat litter on the floor at the base of the opposite wall.

Thus, the litter is in slight diagonal to the stove and the mother of the child is necessarily on that line or very near. [ 33 ] She returns to the apartment after three days elsewhere, goes in her bedroom, lays on the bed and cries. She can’t stand it anymore. She goes in the kitchen, smells the odour coming from the cat litter. But before, while in the bed, she screams at S. and complains about money, and the smell. [ 34 ] In the kitchen, she decides to grab the pans with the intention to throw them in the litter to get rid of the stinky smell. S. tells her not to and B. is in front of the litter.

She puts down the pans to grab them a few seconds later and it is then that her daughter grabs her arms and the pans go up in the air. B. grabs her wrists. Her granddaughter comes in by the front door in the kitchen, near the stove. [ 35 ] The accused states that she forgot to mention in her statement, that her daughter takes her by the wrists. She recognizes that at the time, she is upset with S. and pushes her in the chair. [ 36 ] Cross-examined, she affirms that because of her daughter and her spouse living with her, she does not sleep, nor eat well and that anger inhabits her.

The cats are using the bathtub as a litter. [ 37 ] She thinks that the steaks and the sauce will take the smell away. When she calls 911, she does not mention the issue with the litter. She recognizes that on May 31, 2014, she is intoxicated and if she relapsed, it is because of her daughter and her spouse. She recognizes previous convictions, namely for theft and assault more than 20 years ago. [ 38 ] The above facts with the admissions and the drawings of the kitchen filed in evidence, constitute the elements considered for the analysis.

DECISION [ 39 ] The testimony of the accused as for the third count, contains a confession as to an assault on S. P.. Indeed, the accused affirms, in her testimony, that she enters the kitchen and pushes S. on the chair. That is sufficient in light of all the circumstances. [ 40 ] As for the first two counts, the Court applies the steps as outlined in R. v. W (D) [1] . Does the evidence tendered by the defence satisfy the Court up to a point where the entirety of the testimony is acknowledged as credible and trustworthy, thus raising a reasonable doubt?

Evidently, that question arises after having heard all the evidence. [ 41 ] The answer is negative for the following reasons. On May 31, 2014, the accused is drunk and aggressive. As stated by her daughter, she is loaded, gone and makes no sense. This description of the accused, is confirmed in the police report, when the officer writes that she is very drunk and hard to understand, when she speaks because intoxicated. [ 42 ] Consequently, her recollection of the incident that takes place in the kitchen, must be carefully weighted.

She states that her daughter takes her by the arms, then modifies and says that it is by the wrists. This is not confirmed by her daughter and contradicted by the spouse, S.. [ 43 ] She adds today, that she forgot to mention that fact in her statement. She states that the reason for her grabbing the pans is to get rid of the stinking smell coming from the cat litter.

The reasoning of the accused establishes that she was, as her daughter stated, loaded, gone and also careless and negligent. [ 44 ] The Court considering the above does not accept the entirety of the defence and consequently the testimony of the accused does not raise at the first step a reasonable doubt that warrants an acquittal.

Does the evidence of the accused, when integrated with the evidence, tendered by the prosecution raise conflicts that cannot be solved by the analysis of the evidence? [ 45 ] The accused contradicts her daughter as to the smell from the litter, as to the fighting and as to the motive of her presence in her apartment. She also contradicts her as to the gesture with the pans. [ 46 ] The accused also contradicts S. P. concerning the fighting, the smell and others issues related to their living with the accused.

Furthermore, she contradicts her as to her intention to throw the contents of the pans towards the litter and as to the fact that S. is the one that grabs her by the wrists. [ 47 ] The daughter of the accused, her spouse and their child are in the kitchen and preparing to eat. They are sober and quiet, until the accused, who is on a drinking binge, arrives in the apartment. [ 48 ] For the Court, the sequence of events described by the accused in her testimony, lacks credibility and trustworthiness.

Considering her state at the time, the context described by her daughter and her spouse, the Court at the second step, finds no materialization of a reasonable doubt after analysis of the contradictions.

[49] The defense of the accused, more precisely that she was aiming the litter and that an accident occurred is not believed. How canshe aim the litter, if her daughter is between her and the litter? The witness S. affirms that the accused was looking at her daughter B. andaiming in her direction.

The Court believes the witness as it confirms the testimony of the daughter B., who testifies that she preventedthe pan from hitting her daughter by using her hand as a shield. [50] The Court is convinced, beyond a reasonable doubt, that the accused was aiming her daughter, not the litter. [51] She was drunk, angry, started the fight, her words made no sense and she decided to use the pans as weapons. [52] The offence of assault and assault causing bodily harm, are offences of general intent.

The difference between the two offencesis that assault causing bodily harm requires that that the Crown establishes that bodily harm was objectively foreseeable. [53] There is no need to establish that the accused wanted to cause bodily harm to someone in particular. In R. c. Sénécal[2]: “23- First, it is plain that the Crown had the burden of proving general intent and did not have to show that the respondentintended to hit Officer Marin specifically. It is settled law that the mens rea for common assault, pursuant to paragraph 265(1)(a)Cr.c. is general intent to apply force without consent; SEE R. v.

Tatton, (2015) 2015 SCC 33 , 2 SCR 574, para. (35). TheCrown is not required to prove that the accused intended to apply force to a particular person:…..Given that the respondentknew the persons in her bedroom were police officers, the remaining mental element to be proven was general intent to applyforce.” [54] In the case at bar, the following facts are established:

a) The apartment is the apartment of the accused;

b) kitchen is a very small area and if more than one person is in the kitchen, they can only be separated by a few feet;

c) There were two pans on the stove, one containing the steaks and the other the sauce, they were hot;

d) The accused grabs the two pans with the intention to throw them and does so with one pan;

e) The pan with the hot sauce is stopped by the hand of her daughter B. before it hits her own daughter X, but the sauce lands on thebody of the child, causing serious burns;

f) The accused is looking at her daughter, while she throws the pan and her daughter is a few feet away from the door and from thelitter;

g) The child X, nearly at the same moment, comes in by the kitchen door and places herself in front of her mother

h) The accused is aware that three persons are in the apartment, in the kitchen area and that her granddaughter is only a few feet away,even if outside the kitchen door, as she is aware that she can come in at any time; she had seen her in the kitchen at the beginning of theargument./ [55] Grabbing the pans to throw them is a dangerous move in itself given the very limited space in which two other individuals arealso present. Throwing one of the pans and aiming it at her daughter, while its liquid content is very hot satisfies the general intentrequired.

A reasonable person, could easily foresee the possible consequences. The accused knew that her granddaughter was present,had been taken out of the kitchen by her mother and could come back at any time. [56] Given the context and the space, in which the incident takes place, the Court concludes that bodily harm is objectivelyforeseeable on May 31, 2014, when the accused, angry and drunk grabs the pans with the intention of throwing them and does succeed inthrowing the pan with the sauce. [57] The defense submits that recklessness does not suffice to fulfill the criteria of the mens rea.

For the Court, the question is notrelevant since the Court does not believe the accused when she states that she was aiming the litter. She aimed the pan towards herdaughter, and the sauce splashed in the face of her granddaughter, who had placed herself in front of her mother. The act of throwing,while aiming at a specific person, more than satisfies the general intent required for the offence.

Even if the accused had no intention ofassaulting her granddaughter, it was given the context, a foreseeable consequence. [58] The Court would have come to the same conclusion, even if the accused had been believed, when she stated that she was aimingthe litter. Indeed, the gesture in itself was the expression of total recklessness and disregard, for the safety and integrity of other personspresent in her very near vicinity, thus satisfying the mens rea. [59] The defense submits the decision rendered in R. v. North Peigan[3], in which the Court states that recklessness is not sufficient,intent has to be proven.

But at the same time, at paragraph 12, the judge writes: “12-…..The same is true where assault is the predicate offence, such as assault with a weapon. Recklessness is not enough…stand for the position that when an offence contains the expression “with intent”, this requires proof of intent, or actual foresightof “substantial certainty……” [60] In the case at bar, there was “actual foresight of substantial certainty”. FOR THESE REASONS THE COURT: [61] DECLARES the accused guilty on each count in file 500-01-106488-148.

_________________________________ DANIEL BÉDARD, J.C.Q. M e Sylvie Barrette Attorney of the DPCP M e Nassima Benhacine Attorney of the accused Dates of hearing: July 12, 2017