2022 QCCQ 1157, 2022 QCCQ 1157

R. c. Kirkpatrick 2022 QCCQ 1157 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF BEDFORD LOCALITY OF GRANBY “Criminal and Penal Division” No.: 460-01-038220-202 DATE: March 21, 2022 ______________________________________________________________________ PRESIDING: THE HONOURABLE SERGE CHAMPOUX, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutrix v.

SANDRA MAY KIRKPATRICK Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Sandra May Kirkpatrick is charged with assaulting Francesco Payne with a weapon on September 20, 2020, in Mansonville. She denies committing this offence. [ 2 ] BACKGROUND FACTS [ 3 ] The complainant Francesco Payne stated that he lives on the ground floor of a building that has two or three apartments.

The accused’s apartment is directly above his apartment. [ 4 ] He said that they do not have a good relationship because she is rude, noisy, unpleasant, and uses drugs and alcohol.

He also owns a dog and the accused repeatedly complains about him and his dog to the owner. [ 5 ] He explained that he spent most of the day of September 20 with someone named Woodard, the father of one of his good friends who had died about 10 days earlier in a motorcycle accident. [ 6 ] Francesco Payne was very close to Tristan Woodard and spent the day and evening of September 20 at the home of his friend’s father, along with a few other people and family members in what I understand was some form of wake. [ 7 ] He had planned to spend the night at the Woodard’s home but, at approximately 3 a.m., a friend who lives close to his apartment told him that his dog was barking non-stop. [ 8 ] Aware that this situation was likely caused by something that was upsetting his dog and suspecting that the accused was responsible, he went home.

He explained that when he arrived, he realized that the accused was “jumping” on the floor, apparently non- stop. She even damaged the ceiling structure between the two apartments, or at least caused the ceiling gyprock to crack. [ 9 ] He called emergency services who, he claims, were not in any particular hurry to intervene, given the distance and lack of immediate danger. [ 10 ] While waiting for the police, he tapped on the ceiling and yelled up at the accused, telling her to stop making a ruckus and that he had called the police.

Not long after, he heard a knock at his door. [ 11 ] Because he thought the police had arrived and because he could not see through it, he opened the door. It was the accused. He claims she was intoxicated and holding a butcher’s knife with a long blade. She said “I am going to fucking stab you”. He immediately closed the door and called the police again, this time saying that he feared for his safety and that she had just threatened him with a knife. [ 12 ] The police then arrived, a few minutes or maybe half an hour later.

He said that he did not leave his apartment the night in question after he returned from the Woodard’s home nor did he see any ambulance there. He said that he took photos of the damage to the ceiling, that the police also saw the damage, and that they might have taken photos as well. [ 13 ] One of the officers on the scene, David Keeney, testified for the prosecution. His testimony was rather unimpressive. He confirmed that the emergency services dispatcher received two calls from the complainant.

He stated, however, that when he arrived at the scene with another officer, Francesco Payne was still on the telephone with the dispatcher. He claims that at that moment, Francesco

Payne was outside and yelling at the accused, who was on her balcony. [ 14 ] He said that an ambulance was there because the complainant had said that his neighbour was in crisis and he thought she might need treatment. The police officer’s testimony on when this ambulance was supposedly present is not very convincing.

He stated that either he and/or his colleague asked the complainant to stop yelling at the accused, but could not say whether he went back into his apartment and came back out, or always remained outside yelling. [ 15 ] He appeared virtually incapable of usefully describing the building where he intervened. Yet he said that he entered both apartments, that of the accused and that of the complainant.

He did not see a knife matching the one alleged by the complainant, but did not search for one and nobody asked any questions about a knife. [ 16 ] He did not smell alcohol on the accused, but could not say whether she was under the influence of drugs. I do not believe he was the officer who took the complainant’s version at the complainant’s home, but he made no observations or could not report any, for example, concerning the alleged damage to the ceiling. I note that I do not conclude from his testimony that he did not observe the damage or that there was none. [ 17 ] Last, the accused testified.

She blamed the complainant for all the problems.

He is always drunk and parties all the time with lots of people in his apartment, his friends are very noisy, the accused’s dog constantly does his business everywhere, and tragic events keep happening to the complainant’s friends: one of his friend’s (Woodard) was purportedly “decapitated”, and the day before she was arrested, she said, “a young boy cracked his head open” and there was an impressive amount of blood on the ground. [ 18 ] She claims that on the night in question her neighbour, Irene Buzzell, knocked on her door because of the chaos in the apartment of the complainant, who was still partying or at least making a lot of noise.

Ms. Buzzell had called the police and wanted to have coffee with the accused while waiting for the police to arrive. [ 19 ] The police arrived shortly after, while Ms. Kirkpatrick was still with Irene Buzzell. She never went down to Francesco Payne’s apartment that night or at any other time nor does she own a knife resembling the one described by the complainant. She only has small steak knives. [ 20 ] The noise Francesco Payne heard could not have come from her apartment because there is another floor between her apartment and that of Mr. Payne, where Ms.

Buzzell and another lady live. [ 21 ] Given the method to use when assessing the evidence, for the time being I will accept these elements. [ 22 ] ANALYSIS AND DECISION [ 23 ] The case does not raise any specific legal issue. The sole issue is credibility. [ 24 ] In R. v. W.(D.) ., [1] the Supreme Court of Canada established the appropriate three-step method to use when analyzing the evidence in such cases: 1. If the evidence presented by the defence is believed and exculpatory, the analysis must stop and the accused must be acquitted. 2.

Even if that evidence is not entirely accepted, but it raises a reasonable doubt, the accused must again benefit therefrom and be acquitted. 3. Only if the first two steps do not allow the analysis to be completed is it appropriate to analyze whether the evidence as a whole establishes the accused’s guilt beyond a reasonable doubt. Only then can the accused be convicted. [ 25 ] Therefore, the first question to be answered is whether I believe the accused. [ 26 ] In a word, the answer is no. [ 27 ] I am quite aware of the limited value of conclusions drawn from demeanour evidence.

Witnesses might react differently when participating in a criminal trial, possibly due to personality, culture, level of education, or any other factor. The fact remains that demeanour evidence may be used to a certain extent. [2] [ 28 ] In this regard, I note that the accused intervened non-stop in the courtroom, during the testimony of each witness as well as during pleadings, to comment, state, or express hostility to or agreement with such and such comment or answer, not to mention the sighs or other displays.

I intervened as a result. [ 29 ] When she testified, the accused appeared to be intent on conveying a specific message, regardless of the question posed. She generally evaded the questions, seemed to want to present only her version, answered before the questions were completed, gave inordinately long answers that digressed from the question posed, etc. Ultimately, it was very difficult to obtain answers to precise questions.

The accused simply wanted an opportunity to say what she chose to say. [ 30 ] Moreover, I give very little credibility to her statement that, on one hand, the victim and his noise bothered her so much and, on the other, the noise from her apartment could not have disturbed the complainant. [ 31 ] Her statement that the only knives she has are steak knives seem rather strange, even though she explained it by claiming that she does not cook and eats only prepared meals.

[ 32 ] I also find it surprising that she did not file a complaint with the police, despite the many and very serious neighbourhood issues she described, for example, constant partying, fires, including those involving hazardous substances, threats to burn down the building, very serious accidents caused by drinking parties in Mr. Payne’s apartment.

She claims to have complained many times to the owner. [ 33 ] On the one hand, she claims that the owner was very sympathetic to her complaints, yet her testimony reveals that nothing the owner purportedly did, if he did anything, had the least effect on Francesco Payne. [ 34 ] In such circumstances, how can she support the owner so much or avoid calling the police? [ 35 ] According to her story, one individual, Irene Buzzell, played a key role in this matter. She called the police, she witnessed all of Mr. Payne’s threats, and she was there when the police arrived. [ 36 ] The defence did not call her to testify.

The only reason offered was a vague allusion to mental health problems. In certain cases, unfavourable conclusions may be drawn about a party or an argument from the failure to call certain witnesses. [3] [ 37 ] In this case, however, the defence should have questioned the prosecution’s witnesses in this regard. At the very least, the police officer who testified should have been questioned about this. In fact, the officer never said that the call to intervene at that address came from Ms.

Buzzell or that she was there when they arrived or during their intervention. [4] [ 38 ] On one occasion, the accused also used the expression [ translation ] “documented” to indicate that she had collected credible evidence of Francesco Payne’s misconduct.

When this question was pushed a little further, no such documentation appears to exist. [ 39 ] These illustrations are sufficient to explain why I do not believe the accused. [ 40 ] In addition, her testimony raises no doubt in my mind. [ 41 ] That being said, does the evidence against her prove her guilt beyond a reasonable doubt? [ 42 ] This case is particularly strange in that the three witnesses appear to have witnessed three separate events, although their testimony converges on certain points. [ 43 ] The complainant was rather credible, although he had a tendency to want to depict the accused in a negative way.

Moreover, the complainant clearly testified that the police arrived approximately 30 minutes after the second call, while the officer testified that he was on the phone with the dispatcher when they arrived. The complainant stated that he did not leave his apartment after the accused’s visit. The police officer testified that he was outside and yelling and that he had to ask him to go back inside two or three times. [ 44 ] Francesco Payne spoke about damage to the ceiling, of photos taken and given to the police, and of photos that the police may have taken.

The police officer who testified, while probably not the one who took these photos, does not seem to have any idea what he is talking about [ 45 ] The same is true for the accused’s testimony as compared to that of the police officer: Where was Ms. Buzzell? Where is the information that she called the police? Above all, the accused’s claim that there is an entire other floor between her apartment and that of Mr.

Payne is absurd after hearing the police officer’s testimony, however vague. [ 46 ] How could one tenant complain about noise caused by the tenant above, which would justify the whole conflict, including the accused’s subsequent arrest, when another apartment separated them? Where was the person who lives in the apartment in question and to whom no one referred prior to the defence? Why did the police conclude that Sandra May Kirkpatrick should be arrested in these circumstances? [ 47 ] In short, the evidence is inadequate and incomplete.

After hearing all the witnesses, I have at least a reasonable doubt as to what really happened at that address on the night of September 20, 2020. [ 48 ] FOR THESE REASONS, the accused is ACQUITTED of the charge against her. __________________________________ Serge Champoux, J.C.Q. Mtre Cassandre Hamel Crown prosecutor Mtre Gaël Fortin-Scott Counsel for the accused Date of hearing: February 2, 2022