Her Majesty the Queen - v. -, 2013 SKPC 38

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 038 Date: February 27, 2013 Information: 24478000 Location: Nipawin _____________________________________________________________________________ Between: Her Majesty the Queen - and - Stewart Winn Appearing: L. O’Connor For the Crown R. Neuman, Q.C. For the Accused JUDGMENT I.J. CARDINAL , J INTRODUCTION [ 1 ] On July 5, 2012, Stewart Winn and his common-law wife, Eileen McKay, spent the day in their residence in Nipawin, Saskatchewan, consuming alcohol.

At approximately 10:15 p.m. the RCMP received a call about a fight at the residence and proceeded directly to that location. [ 2 ] The police knocked on the door and Mr. Winn answered. They asked him if he could come in and he allowed them to do

so. They saw Ms. McKay sitting at the kitchen table bleeding heavily from her mouth to her chin area. [ 3 ] The police described Mr. Winn as being intoxicated but they could understand him during their discussion with him. [ 4 ] The officers attended to Ms. McKay and found her to be heavily intoxicated, more so than Mr. Winn. They asked her some questions as to what happened but they could not understand her. [ 5 ] The police asked Mr. Winn what happened. He replied “I punched her”.

This statement was the subject of a voir dire during the trial and was ruled admissible. [ 6 ] The police noted that while the accused was intoxicated he did not appear to be injured in any manner. They also observed a broken window in the kitchen but there was no evidence as to how or when it occurred. [ 7 ] Mr. Winn was arrested for an assault upon Ms. McKay and taken to the detachment, where he was subsequently charged with common assault, contrary to

section 266 of the Criminal Code . [ 8 ] Other officers took Ms. McKay to the hospital where her injuries were attended to. There is no medical evidence as to what injuries, if any, she suffered. Two photographs of her injuries (Exhibit P-1) were tendered into evidence. They show her lower lip is swollen and appears to be bleeding. There is also dry and fresh blood around her mouth and cheek area as well as onto her neck and upper chest area. [ 9 ] The evidence establishes that Mr. Winn punched Ms. McKay. ISSUE [ 10 ] The sole issue is whether Mr. Winn assaulted Ms.

McKay, that is, that he applied force to her without her consent. EVIDENCE [ 11 ] The Crown called Ms. McKay to testify. Her evidence was disjointed and difficult to follow. She had many gaps in her evidence and took much time to answer questions from both counsel. Her recollection of the events was very vague. [ 12 ] She testified she doesn’t remember much about that night, and it is no doubt because she was highly intoxicated. She recalls bits and pieces of the police attending and her being in an ambulance.

However, the police advised no ambulance attended to the house that night as they transported her to the hospital. [ 13 ] Initially, she testified that Mr. Winn hit her in the face once or twice but she couldn’t remember. Before he hit her she does not recall what they were talking about. When asked if she hit him she replied “no”. She testified that after the ambulance picked her up they took her out of the house and that was all she remembered until she next remembered being at the hospital. She was not sure what treatment she was given but she did not get any stitches and she was in the hospital one night.

She testified she did not have to go to a doctor again about her injuries. She testified that Mr. Winn hit her in the face with his fist on the left side of her face. [ 14 ] In cross-examination it became apparent that Ms. McKay’s memory was extremely limited. She said she did not actually recall him hitting her in the face, as other people had told her that is what had happened. She said the only thing she remembered was

that he came towards her and then she remembers seeing the police. She said she recalled that the police were talking to Mr. Winn but she didn’t know what they were talking about. She testified she blacked out and then the ambulance people were talking to her and calling her name. She said she didn’t remember being in the hospital until the next morning when the nurse told her she got bruised on the left side of her face and that she had washed her clothes for her. [ 15 ] Ms. McKay agreed she was drunk. She testified that she and Mr. Winn drank together all day and drank about the same amount.

She testified that when she drinks that much she gets upset and physical. She said that she will go after Mr. Winn sometimes and that is what she thinks happened here. In reference to “going after” him, she said she agreed that she gets quite mad at him for no reason. She said she also gets mad because sometimes he does stuff that makes her mad. [ 16 ] In re-examination she says she does not remember going after him on this occasion nor does she remember being physical with him. ANALYSIS [ 17 ] Mr. Winn is charged with the common assault of Eileen McKay. Section 265(1) (

a) of the Criminal Code provides that “A person commits an assault when without the consent of another person, he applies force intentionally to that other person, directly or indirectly”. [ 18 ] Section 265(2) renders this

section applicable to all forms of assault. [ 19 ] It is a fundamental principle of our criminal law that a person is presumed innocent until proven guilty. The onus is on the Crown to prove the guilt of the accused beyond a reasonable doubt. No lesser standard will suffice. [ 20 ] With respect to the offence of assault, the Crown bears the onus of proving all of the constituent elements of the offence beyond a reasonable doubt, including that the complainant did not consent to the application of force upon her. [ 21 ] I have no hesitation in finding that it was Mr. Winn who punched Ms.

McKay in the face causing her lip to bleed and swell. There was no one else in the house other than the two of them and Mr. Winn’s statement to the police that he punched her is consistent with the fresh blood observed by the police as illustrated by the pictures of her face and upper body. [ 22 ] The punch, however, must be put into context. Ms. McKay testified that the last thing she recalled was Mr. Winn coming toward her. She was not able to elaborate upon this. She could not provide the Court with any details as to what actually occurred.

Her evidence consisted mostly of her answering yes or no to both Crown and Defence counsel’s questions. Very little of the evidence was in her own words until she was cross-examined by Defence counsel. She maintained that the last thing she observed was Mr. Winn coming toward her. She gave no other details or context as to what had been happening before, during or after he came towards her. [ 23 ] The Crown urges the Court to take into consideration the high level of intoxication of Ms. McKay in finding that she could not consent to the accused punching her in the face.

With all respect, the Crown must prove the complainant did not consent to the punch. The type of analysis required hinges upon a factual basis. Unfortunately, due to the high level of intoxication of the complainant, I am not able to determine what happened with respect to Ms. McKay being punched in the face. [ 24 ] There is no context with which to place the punch and no independent evidence as to what occurred between Ms. McKay and Mr. Winn on July 5, 2012.

[ 25 ] In all of the circumstances I am not convinced beyond a reasonable doubt of the guilt of the accused and I find him not guilty. _____________________ I.J. Cardinal, J