R. v. Osborne, 2023 MBPC 70

CITATION: R. v. Osborne, 2023 MBPC 70 THE PROVINCIAL COURT OF MANITOBA BETWEEN His Majesty the King ) K. Tschetter ) ) for the Crown – and – ) ) ) Jade Osborne ) ) C. Pauls for the Accused ) ) Judgment delivered: ) December 11, 2023 FREDERICKSON, P.J. INTRODUCTION [ 1 ] Jade Osborne was at home when she became aware of a woman banging on her front door. She did not know who the woman was. She told her to go away. The woman persisted in her attempts to be let into Ms Osborne’s home. [ 2 ] Ms Osborne went outside to try and convince the woman to leave.

An altercation occurred, and Ms Osborne struck the woman with a bat. She is charged with aggravated assault and assault with a weapon. She argues that she did so in defence of her property and in self defence. [ 3 ] The trial proceeded somewhat unusually, as the Crown was not able to locate Ms Smith. Nor did Justine Beardy – a Crown witness who apparently saw Ms Smith before the altercation – appear in response to being subpoenaed.

A witness warrant was issued, but she was not located prior to the end of trial. [ 4 ] Despite these witnesses not being available to the court, the Crown was able to establish through the evidence of several police officers, along with video surveillance from a neighbouring suite, and through Ms Osborne’s police statement that Ms Osborne did strike Ms Smith with a bat.

The issues to be determined are whether the injuries suffered by Ms Smith constitute aggravated assault, and whether either of the defences of defence of property, or self defence have been made out. [ 5 ] A preliminary comment about the identity of the complainant, Diane Smith. She and Ms Osborne are unknown to each other. When Ms Smith was taken to hospital, she did not have any identification on her.

Although the identity of the complainant was challenged during the course of trial, the evidence of Constable Brar of the Winnipeg Police Service, combined with corroborating details in the surveillance video satisfied the Court of her identity. Counsel for Ms Osborne conceded in closing argument that the complainant was Diane Smith. THE EVIDENCE [ 6 ] Six police officers with the Winnipeg Police Service (WPS) testified. Their evidence was logical and straightforward, and detailed the investigative steps they took.

I have no difficulty in accepting the collective police evidence as credible and reliable. [ 7 ] While Ms Osborne did not testify or call evidence, her statement to police was admitted into evidence as part of the Crown’s case. It was agreed to have been given voluntarily. In it, she admitted to hitting Ms Smith. She claimed that she acted in self defence. At trial, the main defence advanced was defence of property. [ 8 ] A modified W.(D.) approach is required for Ms Osborne’s exculpatory evidence, since essential elements of both defences are objective.

Even if I believe Ms Osborne’s account of what happened, or it raises a reasonable doubt, I may still reject that she acted in defence of her property or in self defence on the grounds that her use of force was not reasonable in the circumstances (see R. v. Mousseau , 2023 MBKB 7 at para 77 ). [ 9 ] In her statement she tells Detectives Brett Dorsey and Jean Guy Roy that she struck a female, who was on her front porch. She used a bat that she kept in the house and told officers where she put the bat after the assault. The bat was subsequently located, seized and tendered into evidence.

[ 10 ] The surveillance video, taken from an upstairs window of the neighbouring suite, shows a female in a red jacket and black pants on the front exterior porch area. The view is partially blocked by a roof line. While the video does not directly show her knocking or banging on the door of Ms Osborne’s suite, the sound from the video establishes this. [ 11 ] The female, established to be Diane Smith, appears intoxicated. She is yelling and swaying. Her words sound garbled or slurred. She appears to be demanding to be let into the suite. [ 12 ] In the video, Ms Osborne appears at the side of the porch entrance.

She is at the bottom of the stairs, and is wearing a black high-visibility jacket with yellow markings. She has a bat in her hand. She is yelling at Ms Smith, telling her to get off of her property. Ms Osborne strikes the stair railing twice with the bat. She motions with the bat for Ms Smith to leave. [ 13 ] The video shows light from the front door of Ms Osborne’s suite. There are times when the light appears brighter.

Based on the shadows visible from the light, and how Ms Smith reacts, it appears that the door to the suite is open or being opened when the light becomes brighter. [ 14 ] During one of the times that the light becomes brighter, Ms Smith turns from Ms Osborne and moves toward the front door. She is no longer in camera range. Ms Osborne runs up the stairs, swings the bat with one hand and strikes at Ms Smith. The actual contact is not seen on video, but can be heard. The angle of the video does not show the aftermath, but it appears that Ms Smith falls after being struck.

She is not seen in the video again. [ 15 ] After the strike, Ms Osborne appears – based on the light level and the visible shadows – to go inside her suite. The door is closed. A few minutes later, the door opens and Ms Osborne is seen coming out of the suite with a male. They walk toward what was described as the door of suite two and bend down to check on Ms Smith. They both go back inside. [ 16 ] The evidence of what is observed in the video, and what Ms Osborne tells the police happened, generally accords. The officers do not challenge or question what Ms Osborne tells them.

There are some inconsistencies; to the degree her statement is inconsistent with the video evidence, I accept the video as more accurately portraying what happened. Aside from these inconsistencies, which I will address, I accept her statement to police as truthful. [ 17 ] Accordingly, based on the evidence as seen in the video and Ms Osborne’s statement, where she told police that she used a bat to hit a woman who was trying to enter her house, the unlawful act of assault with a weapon has been made out.

Did Ms Smith’s injuries constitute aggravated assault? [ 18 ] Aggravated assault is defined at s. 268(1) of the Criminal Code as follows: Every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant . [ 19 ] There is no definition of “wound” in the Criminal Code . However, in R. v. Pootlass, 2019 BCCA 96 , the British Columbia Court of Appeal undertook an extensive review of the definition of wound, as it applies to aggravated assault. The Court held that to wound means a break in the whole skin that constitutes serious bodily harm.

Serious bodily harm means a hurt or injury that interferes in a substantial way with the integrity, health or well-being of the complainant. [ 20 ] In coming to these conclusions, the Court noted that there needs to be something more than simply a break in the whole skin. If this were the case, then it could lead to a result where a relatively minor cut would constitute aggravated assault, yet would not reach the threshold of the lesser included charge of assault cause bodily harm. [ 21 ] As has been noted, Ms Smith did not attend the trial and did not testify.

The only evidence regarding the extent of her injuries is the medical report from the Health Sciences Centre where she was admitted following the assault. [ 22 ] The report refers to a “bad maxillary alveolar fracture”. No expert medical testimony was offered. It was not clear to the Court what exactly this meant. When I inquired of counsel, they referred to it being a broken bone in the face. The report refers to the fracture as involving the left first and second incisors, which would suggest broken teeth.

One tooth was recovered on scene. [ 23 ] The extent of the injury was not clear, aside from the descriptor of “bad”. The same report refers to the fracture being “reduced at bedside”, which might suggest something less serious. It is unclear. [ 24 ] There was a small cut to her lip, which was sutured. There was reference to “minimal soft tissue swelling”. The records also refer to “age indeterminate nasal bone fractures”, which suggest prior injury to her nose. [ 25 ] The Crown argues that I should treat an injury such as a broken bone on the face as establishing aggravated assault.

Further, that the loss of a tooth would be “disfiguring”, which is another element of aggravated assault. [ 26 ] In reading the medical records, it is not clear whether the “maxillary alveolar fracture” involves broken bones or broken teeth, or both. A tooth was recovered from the front porch area where Ms Smith was found. [ 27 ] The medical records indicate a consultation by “OMFS”, which presumably is a medical department.

The records indicate that OMFS would be “able to repair her dental injury when she is extubated”. [ 28 ] The medical records also state that Ms Smith checked herself out of hospital against medical advice. Whether she has resolved the issue of the missing tooth is unknown.

[ 29 ] Without Ms Smith to testify as to the nature and extent of the injuries, and how the injuries interfered with her comfort or well being, the Court is left to speculate.

Without expert medical evidence to indicate how this type of injury generally impacts a patient, it is too large a gap for the Court to infer a substantial interference with Ms Smith’s integrity, health or well-being. [ 30 ] Based on the evidence that is before the Court, I find that the Crown has not established beyond a reasonable doubt that the injuries suffered by Ms Smith as a result of Ms Osborne’s actions meet the definition of aggravated assault. [ 31 ] I am satisfied that the injuries as described in the medical records would meet the definition of “bodily harm”, which is a lesser included offence to aggravated assault.

However, as I have already found that Ms Osborne committed the unlawful act of assault with a weapon, which is included with assault cause bodily harm in s. 267 of the Criminal Code , there will not be a finding of guilt with respect to assault cause bodily harm. WAS MS OSBORNE ACTING IN DEFENCE OF HER PROPERTY? [ 32 ] I now turn to the first defence raised; namely that Ms Osborne committed the assault in defence of her property. [ 33 ] The Crown argued that there was no air of reality to the defence.

With respect, I disagree. [ 34 ] The air of reality test is one that is applied by judges in a gatekeeper role, ensuring that only relevant evidence is put to the trier of fact. The two-prong question for determining whether an evidentiary foundation justifying a defence exists is whether (1) there is evidence, (2) upon which a properly instructed jury acting reasonably could acquit if it believed the evidence to be true (see R. v. Cinous , 2002 SCC 29 at para 65 ). [ 35 ] The air of reality must exist to the whole of the defence.

When considering whether the threshold is met, the Court does not assess the merits of the defence. At this stage a trial judge “considers the totality of the evidence, and assumes the evidence relied upon by the accused to be true” ( Cinous at para 53 ). Doubt as to whether the air of reality threshold is met should be resolved in favour of leaving the defence to the trier of fact ( R. v. Mustard , 2016 MBCA 40 at para 27 ). [ 36 ]

Section 35 of the Criminal Code sets out the elements of the defence.

The relevant elements to this case are: - That the accused is in peaceable possession of property; - That the accused believes on reasonable grounds that another person is about to enter or is entering the property without being authorized by law to do so; - The act that constitutes the offence is committed for the purpose of preventing the other person from entering the property, or removing that person from the property; and - The act committed is reasonable in the circumstances. [ 37 ] If believed, Ms Osborne’s police statement and the video from the neighbouring suite provide the evidentiary foundation to support her claim of defence of property. [ 38 ] In this case, I am sitting as both gatekeeper and trier of fact.

In my gatekeeper role I am satisfied, based on the whole of the evidence before me that the air of reality threshold has been met for each element of the defence. [ 39 ] Having made this determination, the onus is on the Crown to disprove one or more of the elements of the defence. 1. Was Jade Osborne in peaceable possession of [REDACTED] College Avenue? [ 40 ] [REDACTED] College Avenue in Winnipeg, Manitoba was Ms Osborne’s residence. She lived there with her two male roommates and two young daughters.

She was present in the residence when Winnipeg Fire Paramedic personnel showed up, and later when police arrived. Following her statement to police, they obtained a search warrant for her residence. Pictures taken on scene were tendered into evidence, including pictures of Ms Osborne’s closet in her bedroom, the location of the bat she used to hit Ms Smith and pictures of the jacket she was seen wearing on the video. [ 41 ] There is no question that Ms Osborne was in peaceable possession of [REDACTED] College Avenue, which includes the front steps and porch area where the altercation took place.

The first element of the defence is established. 2. Did Jade Osborne reasonably believe that Diane Smith was entering or about to enter her property? [ 42 ] This “triggering threat” is assessed on a combined subjective (what the accused honestly believed) and objective (would a reasonable person share the accused’s belief) basis (see Canada Department of Justice .

Bill C-26 (S.C. 2012 c.9) Reforms to Self-Defence and Defence of Property: Technical Guide for Practitioners ). [ 43 ] In her statement to police, Ms Osborne says that she first became aware that there was someone “dangling like off my fence” from her roommate, Billy. A few minutes after Billy telling her this, she said she heard a banging at the door, and one of her daughters came to her, to say that there was someone at the door. [ 44 ] Ms Osborne said she opened the door. The woman – Diane Smith – tried to enter. Ms Osborne told her no, and quickly closed the door.

Ms Smith kept banging on the door. [ 45 ] She told police that at this point her hands were shaking and “we” were holding the door closed. While not specifying who the “we” was, Ms Osborne later refers to her roommates opening the door and telling Ms Smith to leave. Ms Osborne decided to go outside and confront Ms Smith.

[ 46 ] The surveillance video shows Ms Osborne at ground level, at the side of the wide stairway leading to the front porch area of the residence. She is at the side furthest away from Ms Smith. Her words and gestures are clearly communicating for Ms Smith to leave. [ 47 ] Ms Smith does not leave. She keeps on with her attempts to enter the property. The video shows her moving toward the door, out of camera range. It is at this point that Ms Osborne strikes the bat against the railing twice, getting Ms Smith’s attention. [ 48 ] Ms Smith turns toward Ms Osborne.

She is yelling and gesturing in what could be interpreted as an aggressive or fighting manner. Both women can be heard calling each other “bitch”. [ 49 ] Ms Osborne tells police that Ms Smith was telling her roommates to “fucking mace this girl”. While her roommates would obviously not take Ms Smith up on this, it demonstrates Ms Smith’s state of mind; that she wanted violence used on Ms Osborne. [ 50 ] The door to the residence appears to open, based on the light and shadows observed. Ms Smith again turns from Ms Osborne and moves toward the door.

It is at this point that Ms Osborne climbs the stairs and swings the bat with one hand, striking Ms Smith. [ 51 ] Subjectively, the evidence establishes that Ms Osborne believed that Ms Smith was trying to enter her residence. Despite Ms Osborne and her roommates yelling at Ms Smith to leave, she continued with her efforts to gain entry to the residence.

Ms Osborne’s words and actions – including striking the stair railing with the bat to get Ms Smith’s attention – are consistent with attempts at getting Ms Smith to leave the property. [ 52 ] Despite an inconsistency between her police statement and the video evidence, from an objective basis, the video evidence supports Ms Osborne’s belief. [ 53 ] In her police statement she tells police that Ms Smith came towards her. The video evidence shows Ms Smith moving closer to the door just prior to the strike. Whether she was referring to the interaction with Ms Smith just prior to the door opening is not clear.

According to the time stamp on the video, the interaction took place over a matter of seconds, with Ms Smith turning from Ms Osborne and towards the light of the door at 19:10:29 and Ms Osborne striking her at 19:10:32. [ 54 ] If the main defence being advanced was self defence, this inconsistency may have greater import. However, moving closer to the door as it appears to open is objectively consistent with the belief that Ms Smith was trying to gain entry to the residence. [ 55 ] The second element of the defence is established. 3.

Did Jade Osborne assault Diane Smith with a bat for the purpose of preventing her from entering the property? [ 56 ] This defensive purpose is assessed on a purely subjective basis. [ 57 ] Ms Osborne told police that she hit Ms Smith because she did not want her to enter the home. She was concerned that Ms Smith might “do something or fight them in the front hallway”. [ 58 ] As has been previously noted, Ms Osborne and her roommates were telling Ms Smith to leave the property.

She was ignoring their demands and continuing to bang on the front door. [ 59 ] Moments before striking Ms Smith, the video shows Ms Smith turning toward Ms Osborne, saying something and gesturing with her hands. She then turns toward the door of the residence, moving out of camera range. [ 60 ] Ms Osborne struck Ms Smith once, swinging the bat with one hand. Ms Smith fell to the floor of the front porch area, and Ms Osborne went inside her residence. She came out once, a few minutes later to check on Ms Smith, and then returned inside.

There is no evidence of any further interaction with Ms Smith, until such time as paramedics and police arrived. [ 61 ] In the totality of the circumstances, I find that the assault with a weapon was committed to prevent Ms Smith from entering the unit. The third element of the defence is made out. 4.

Were Jade Osborne’s actions reasonable in the circumstances? [ 62 ] Unlike s. 34 of the Criminal Code (self defence), there is no enumerated list of factors to consider in assessing this element. [ 63 ] As with the self defence provisions, the response in defence of property must be assessed as “reasonable in the circumstances”, namely on an objective basis. [ 64 ] As noted in Bill C-26 (S.C. 2012 c.9) Reforms to Self-Defence and Defence of Property: Technical Guide for Practitioners : Although there is no express limitation on the amount of force that may be used to defend property from interference, Canadian courts have unambiguously held that it is not reasonable to use deadly force in defence of property alone…A dwelling house is a special kind of property – threats in relation to a dwelling house typically also create an element of personal danger which likely is enough to trigger defence of the person, which does allow for deadly force to be used.

Many other types of property disputes may escalate and give rise to threats to personal safety, thereby potentially allowing use of force (or other defence acts) in self defence. [ 65 ] Defence of property was the primary defence led at trial. As with the commentary noted above, the property involved her residence, and there was an element of personal danger, particularly in relation to her two young daughters. Deadly force was not used. [ 66 ] Based on the facts of this case, I find that Ms Osborne’s use of force – namely striking Ms Smith once with a bat – was reasonable in the circumstances.

I make this finding for the following reasons.

[ 67 ] Ms Smith was undeterred in her efforts to enter the residence. Despite being told multiple times to leave by Ms Osborne and her roommates to leave, she did not. She persisted in banging on the door. [ 68 ] When Ms Smith did not comply with the verbal demands, Ms Osborne struck at the railing to emphasize her words. She did not immediately escalate to physical violence. She continued to demand that Ms Smith leave. Ms Smith’s response was to yell back and at one point, encourage violence towards Ms Osborne. [ 69 ] Ms Osborne physically gave Ms Smith an exit path.

When she first came outside to confront Ms Smith, she chose to exit out of a side door, rather than the front where Ms Smith was. She remained at ground level and at the side of the stairs furthest from Ms Smith. The stairway was wide and Ms Smith could have exited without coming into contact with Ms Osborne. [ 70 ] Ms Smith was intoxicated. While the Crown argued that this made her less of a threat in relation to Ms Osborne, who was sober, I disagree. [ 71 ] Intoxicated people have poor judgement and less inhibitions.

Ms Osborne didn’t know Ms Smith but knew that she wasn’t listening to demands to leave and saw her continuing to try and gain entry to her residence. [ 72 ] Although Ms Smith’s gait was unsteady and her words slurred, she was acting aggressively. She was yelling at Ms Osborne and encouraging that she be maced. [ 73 ] Ms Osborne has had negative life experiences with intoxicated people. She tells Detectives Dorsey and Roy that she grew up being “defenceful” [sic] and aware around intoxicated people. She also told them about a prior incident involving an intoxicated person at her residence.

When asked to leave, that person threw a beer bottle into the house, which landed on a couch where her young daughters were. That person then returned and broke her door. The detectives noted the similarities between that incident and the one faced by Ms Osborne in relation to Ms Smith. [ 74 ] It was argued that Ms Osborne could have remained inside, kept the door locked and called 911. [ 75 ] Calling 911 is an option. Instead, Ms Osborne took matters into her own hands. In her words, she “snapped”.

She did not even think to call 911 after striking Ms Smith. [ 76 ] She is an Indigenous woman, who has experienced living in some rougher neighbourhoods in Winnipeg, and dealing with intoxicated people as part of her walks with Bear Clan Patrol. She is protective of her daughters. She told the officers of a kidnapping attempt by one of the girls’ fathers, and her unsuccessful attempt at obtaining a protection order against him. She told them of her struggles to keep her daughters safe during COVID. Her previous experience with an unwanted intoxicated person resulted in damage to her property.

It is perhaps unsurprising that calling 911 was not an option that crossed her mind. [ 77 ] There is no reliable evidence as to how long Ms Smith was banging on the door prior to Ms Osborne going outside. Ms Osborne estimated it to be a few minutes; possibly five. The video evidence, which starts with Ms Osborne at the foot of the stairs, yelling at Ms Smith to leave, has a time stamp of 19:10:02. She hits Ms Smith at 19:10:32. Within those 30 seconds, Ms Smith moves out of camera range and towards the door twice.

In between those movements, she is seen yelling and gesturing at Ms Osborne. [ 78 ] Since she was outside, she had no control over what her roommates were doing inside. For whatever reason they opened the door, prompting Ms Smith to move towards it. Ms Osborne reacted to this. [ 79 ] It was after the second movement towards the door that Ms Osborne struck Ms Smith. Although she demonstrated using a poking action in her police statement, the video shows her swinging the bat. It is a one-handed swing. She strikes once.

After Ms Smith falls to the ground, Ms Osborne does not strike or otherwise appear to touch her. [ 80 ] Aside from the inconsistency in how she used the bat, the other details in her statement of how she hit Ms Smith are consistent with the video evidence. I find that she was not trying to diminish or downplay this aspect of her actions.

She was forthcoming about her actions, and expressed remorse for hitting Ms Smith. [ 81 ] Given the immediacy of the threat posed by Ms Smith – an intoxicated person she did not know – to her residence with her two young daughters inside, Ms Osborne was not expected to stop and reflect on the exact measure of force warranted by her defensive action. [ 82 ] Although staying inside, calling 911 and hoping to not experience a repeat of her previous bad experience with an intoxicated person at her residence could have been another way to deal with Ms Smith, I am satisfied in the totality of the circumstances that her actions were reasonable. [ 83 ] As the Crown has not disproved an element of the defence of defence of property, I find that it applies.

It is unnecessary to consider whether the defence of self defence is applicable. [ 84 ] Jade Osborne is therefore acquitted of the offence of assault with a weapon. “Original signed by:”

FREDERICKSON, P.J.