Her Majesty the Queen - v. -, 2012 SKPC 2

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 002 Date: January 19, 2012 Information: 36652853 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Raymond John Simpson Appearing: Sheryl Fillo For the Crown Jay Watson For the Accused JUDGMENT P.S. KOLENICK , J BACKGROUND [ 1 ] The accused is charged, on or about April 2, 2011, at or near Saskatoon, that he committed an assault on the complainant, contrary to s. 266 of the Criminal Code .

[ 2 ] The Crown alleges that the motor vehicle being operated by the accused’s spouse with him as the passenger had been cut off in traffic. Shortly thereafter, when both motor vehicles were stopped at a red light, he approached the driver’s side window where the complainant was seated. When the complainant rolled it down, the accused reached in and grabbed his jacket. Thereafter he punched him twice in the chest before returning to his own motor vehicle.

The light turned green, and the traffic proceeded. [ 3 ] Conversely, the accused confirmed that he had indeed approached the driver’s window of the complainant’s motor vehicle, but only to vent his anger and frustration for the complainant’s manner of driving. He had been using hand gestures and motions where he stood but had not touched the complainant nor placed his hands inside the car. [ 4 ] The issue which has arisen is as follows: Is the evidence of the Crown sufficiently credible to prove beyond a reasonable doubt that the accused had unlawfully applied force as alleged?

EVIDENCE FOR THE CROWN Brian Shaunessy - The Complainant [ 5 ] Mr. Shaunessy had been at the Shaw Centre with his two sons, ages 5 and 9, swimming. He was not a resident of Saskatoon and not particularly familiar with the roadways. [ 6 ] At the time of this alleged matter he was proceeding north on Idylwyld Drive. Traffic was very busy and grid-locked.

In the process of attempting to merge when the lane in which he had been travelling ran out, his vehicle cut off in traffic the one containing the accused. [ 7 ] Shortly thereafter, when they were stopped at a red light, he heard a big bang and the accused appeared at the complainant’s driver’s window, which he rolled down. The accused started uttering threats and acted like he wanted to fight. He reached into the complainant’s motor vehicle, grabbed his jacket and pulled on it saying he wanted to beat him up.

Even though the complainant apologized for cutting him off in traffic, the accused hit him twice in the chest with his fists, but no injury occurred. As he made his way back to the passenger seat of his motor vehicle, the accused banged on the window in back of the complainant’s motor vehicle. When they were stopped at a traffic light again, the complainant called 911 to report what allegedly had happened.

The police were able to attend at the scene shortly thereafter. [ 8 ] In cross-examination the complainant confirmed that he had indeed cut off the accused’s motor vehicle as he was attempting to merge and otherwise he would have had to drive in the ditch. He agreed as well he would have been upset if that had happened to him. Indeed the accused was very angry when he arrived at the window.

Further, although he was animated in making gestures with his hands as he spoke, the accused had also reached into the car with his hand to grab his shirt, and had also punched him in the car before returning to his own motor vehicle where he had been seated. Corri Porteous [ 9 ] At the material time, Corri Porteous was proceeding in traffic on Idylwyld Drive in the area where this alleged matter had occurred. She saw the accused standing outside the door of the complainant’s motor vehicle trying to open its door and he seemed to be upset.

Immediately thereafter she saw the accused make two strikes which appeared to be inside the complainant’s motor vehicle where he was seated, but could not see where those blows landed.

[ 10 ] The accused returned to the passenger seat of his motor vehicle and entered therein. Ms. Porteous called 911 and the whole incident took roughly ten to fifteen seconds. [ 11 ] In cross-examination Ms. Porteous confirmed that she had not been able to see whether the alleged blows had actually struck the complainant but just saw the motion. As well despite that her motor vehicle was not immediately adjacent to the parties’ motor vehicles she was able to see what had allegedly occurred to give a reliable indication.

Trevor Porteous [ 12 ] Trevor Porteous was in the passenger seat of the motor vehicle from which Corri Porteous had made her observations. He, too, had called 911. There was verbal and an apparent physical altercation with the complainant. The accused had been yelling at the complainant where he was seated in his motor vehicle. The complainant had rolled down the vehicle. The accused punched twice into it, looked at Mr. Porteous and punched two more times into the motor vehicle while the witness was calling 911.

All four punches had entered up to the elbow but he could not see whether they had connected. [ 13 ] In cross-examination Mr. Porteous confirmed that the whole incident took roughly 60 to 90 seconds. When it was over the accused got back in his motor vehicle once the traffic light turned green. EVIDENCE FOR THE DEFENCE The Accused [ 14 ] Mr. Simpson is 51 years old. His spouse was operating their motor vehicle as they made their way back home to Warman, Saskatchewan, after shopping for groceries. [ 15 ] Prior to this alleged matter, the complainant had approached their motor vehicle on the shoulder.

They had to swerve in order to avoid contact with that motor vehicle. [ 16 ] At the next light, the accused approached the complainant’s motor vehicle and spoke to him. The complainant rolled down the window, and the accused said words like “what the fuck do you think you are trying to pull?” The complainant said he was not from the city. The accused stated that that was no excuse for the crummy driving. After that the complainant stated words like “I guess we are going to have to fight now” to which the accused shrugged his shoulders.

While this was ongoing, the accused had been moving his hands in a sideways gesture because that is the way he expresses himself when nervous. However, he denied having placed his hands inside the complainant’s motor vehicle at any time, as alleged. [ 17 ] In cross-examination the accused confirmed there had been no damage or contact with the parties’ motor vehicles beforehand. As well, even though the traffic light was about to change, he wanted to give the complainant a piece of his mind, like he would do for a younger inexperienced worker in the accused’s construction industry to correct that activity.

That was why he had used harsh language on the complainant. As well, he had wanted to vent his anger. He was yelling and swearing as a natural reaction to what had occurred. [ 18 ] However, although he was angry, the accused had not hit the complainant’s motor vehicle nor had he grabbed or punched at the complainant as alleged. When the complainant had said “I guess we’ll have to fight”, the accused just shrugged his shoulders and walked away. As well, he denied attempting to open the complainant’s motor vehicle door.

Joyce Simpson [19] Ms. Simpson is the spouse of the accused and had been operating the motor vehicle prior to the encounter between theparties. The complainant had been speeding up on the left shoulder where they were located, swerving into their motor vehicle so thatMs. Simpson was forced to swerve to the right in order to stay out of the way. [20] Thereafter at a red light en route, the accused alighted from the passenger side and approached the complainant’s driver’swindow. Ms. Simpson left her window rolled up. She heard loud voices and the accused yelling.

However when the light changed togreen, the accused returned to their motor vehicle and they proceeded on their way. She denied that he had touched the complainant’smotor vehicle nor had he put his hands inside it for any purpose. [21] In cross-examination Ms. Simpson disputed there had been any discussion between herself and the accused before he got outat the red light, but he had looked to be very upset. When confronting the complainant he was yelling, but she could not hear what hewas saying. The whole incident took only roughly twenty seconds.

His only contact with the complainant’s motor vehicle was tappingon the window. ANALYSIS Is the evidence for the Crown sufficiently credible to prove beyond a reasonable doubt that the accused had unlawfully applied force asalleged? [22] In R. v. K.B.R., 2011 SKPC 108, I had occasion to consider the general principles applicable in this type of situation noting asfollows, starting at para. 17: [17] The constituent elements for this alleged matter 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; [18] 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. [19] 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.

[ 23 ] It is noted herein that, generally, it is not easy for any witness to observe, recall and relate what allegedly occurred in a brief, traumatic flurry of activity as circumstances unfolded here. [ 24 ] As noted, the accused had confirmed approaching the complainant’s window while they sat at a red light.

He was angry and frustrated because their motor vehicle had been cut off in traffic, gesturing his hands as he is inclined to do when nervous or excited said words like “what the fuck do you think you are trying to pull?” However, he denied putting his hands inside the complainant’s motor vehicle or having any nature of physical contact with him as claimed by the Crown. In general that description of activity was confirmed by his spouse in her testimony.

Both stood up reasonably well in careful cross-examination. [ 25 ] However, the complainant claimed that the accused had reached in the window and grabbed his jacket. Shortly thereafter he had been punched twice in the chest before the accused had returned to the passenger side of his own motor vehicle in the brief period before the light turned green. Likewise, his evidence did not vary in cross-examination to any significant extent. [ 26 ] Therefore the analysis of the evidence of the independent witnesses, Corri Porteous and Trevor Porteous becomes critical. Admittedly their vantage point was not ideal.

However, to their credit, both conceded they could not see whether the blows which the accused had allegedly struck actually connected. However they were adamant in the manner in which the accused had conducted himself in his encounter with the complainant at the material time. The differences in their description as to how the blows had occurred is not material for present purposes. As such, the accused’s claim that he had merely been engaged in nervous hand gestures and did not apply any physical force to the complainant has no air of reality to it.

There was nothing in the accused’s self-described innocent sideways motion of his arms outside the complainant’s motor vehicle that can be reconciled with the punch-like movements into the motor vehicle observed in the Porteous’ testimony. [ 27 ] The evidence for the Crown is sufficiently credible to prove the constituent elements of the offence beyond a reasonable doubt and he is guilty of the offence of assault contrary to s. 266 of the Criminal Code as charged. ____________________ P.S. Kolenick, J