Her Majesty the Queen - v. -, 2013 SKPC 63

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 063 Date: April 18, 2013 Information: 24476103, 24476128 Location: Esterhazy, SK _____________________________________________________________________________ Between: Her Majesty the Queen - and - Sergii Perekrestov Appearing: Barry Stricker For the Crown Merv Ozirny For the Accused _____________________________________________________________________________ JUDGMENT D. C. CHOW, J _____________________________________________________________________________ INTRODUCTION

[ 1 ] The Accused, Sergii Anatoliyovych Perekrestov, stands charged with three separate counts of assault, one count of assault with a weapon, and one count of uttering a threat, contrary to sections 266 , 267 (

a) and 264.1(1) (

a) of the Criminal Code , respectively. Each of the alleged offences is said to have been perpetrated upon a single Complainant, one Tyler Brown, and to have occurred on or about the 28th day of April, 2012, in the District of Esterhazy, Saskatchewan. [ 2 ] The Crown elected to proceed by way of

Summary Conviction, and the trial proceeded at Esterhazy, on January 24, 2013; as Mr. Perekrestov’s mother-tongue is Ukrainian, the Court enlisted the assistance of an interpreter, Mr. Anatoliy Trokhymchuk. EVIDENCE [ 3 ] The Crown’s first witness was Nyall Jenkins. Mr. Jenkins testified that on the date in question, April 28, 2012, he was employed as a labourer at the K3 Mine, near Esterhazy. [ 4 ] Mr.

Jenkins is acquainted with both the Accused and the Complainant, as the three were co-workers at the mine site, and he readily identified the former in the body of the Court. [ 5 ] On April 28, 2012, he, along with the Accused and Complainant were installing geotextile fabric in the production shaft of the mine. The Accused was fastening the fabric to the tunnel face with the aid of a Hilti gun when the Witness and the Complainant walked up. The Complainant confronted the Accused over the fact the latter was not wearing earplugs.

According to the Witness, the Complainant uttered words to the effect of “If they are going to take our jobs, they should have the proper equipment.” [ 6 ] At this point things began to escalate, according to Mr.

Jenkins, and the Complainant and Accused began arguing for what he estimated to some 15 to 20 minutes, at which point the Accused climbed down off of his ladder and grabbed the Complainant by the neck. [ 7 ] According to the Witness, the Accused then climbed back up the ladder and began once again affixing the fabric; however, the Complainant ripped it down off the wall, prompting the Accused to climb back down the ladder and once again grab the Complainant by the neck. At this point, according to Mr. Jenkins, the Complainant walked around a corner in the mine shaft, and the Accused followed. Mr.

Jenkins estimated he was at this point, some 20 feet from the Complainant and the Accused, when he saw the Accused push the Complainant, and then lunge at him with a pair of large industrial scissors. [ 8 ] The Complainant managed to block the Accused’s advance and words were briefly exchanged between the two, before Mr. Brown walked away. [ 9 ] Notably, Mr.

Jenkins testified that the Complainant reported this incident to his supervisor. [ 10 ] Under cross examination, the Witness acknowledged that he and the Accused were friends, that they had travelled to court together from Saskatoon, and that they had discussed the circumstances surrounding the alleged incidents, both en route to court that day, and on the preceding evening. [ 11 ] Mr.

Jenkins testified that on the date in question, he and the Complainant had “claimed” the job of installing the geotextile fabric, but when they arrived on scene, the Accused was already performing it; this, he explained, had angered the Complainant. Indeed, the Witness conceded he had attempted to calm the Complainant down, as the latter was, as he described it, “really mad”. The Witness also acknowledged that he personally saw the Complainant rip down the geotextile fabric more than once, and perhaps as many as three times, as the Accused attempted to fasten it to the wall of the shaft.

He agreed that he could not understand anything the Accused was

saying throughout the incident, given the language barrier, but did recall the Complainant swearing at the Accused throughout the majority of the incident. [ 12 ] Mr. Jenkins could not recall having seen the Accused pick up the scissors, nor could he recall if Mr.

Perekrestov was holding the Hilti gun when he allegedly grabbed the Complainant by the neck, with what he believed to be the Accused’s left hand. [ 13 ] He confirmed his testimony-in-chief to the effect that, while in his presence, the Complainant reported the incident to the project’s Safety Specialist, whom he described as “Dave”, at the scene. [ 14 ] The Crown’s next and final witness was the Complainant, Tyler Brown. [ 15 ] Mr.

Brown is presently a resident of Saskatoon, but was employed as a sheet metal worker at the K3 Mine in the district of Esterhazy, on April 28, 2012. [ 16 ] According to the Complainant, he and the Accused had gotten along well prior to the alleged incidents; indeed, the two had met and worked together on a previous job, and he considered Mr. Perekrestov to be “a good guy”. [ 17 ] He explained that hostilities between the two began on April 28, 2012 as a result of the Accused “taking away our jobs” and failing to wear ear protection. According to the Complainant, he and Mr.

Jenkins had been assigned the task of installing the geotextile fabric by their Supervisor; however, when Mr. Jenkins and Mr. Brown arrived on scene after their lunch break, they discovered the Accused and another individual were already doing the job. [ 18 ] This was the first task that he and Mr. Jenkins had been assigned to complete on their own, and the Complainant was upset. Moreover, he testified the Accused was not wearing earplugs, in contravention of their safety training.

He confronted the Accused about this, and offered him the plugs out of his own ears, but the Accused refused to take the same, or to cease the work. [ 19 ] In response, the Complainant tore down the geotextile, at which point the Accused, according to the Complainant, crawled down off of the ladder and choked him. Mr. Brown testified he was shocked by the Accused’s response, and denied saying or doing anything to this point to suggest he was consenting to a physical altercation. [ 20 ] Mr. Brown explained he backed up quickly, and the Accused got back on the ladder and began re-fastening the fabric.

He once again offered his ear-plugs to the Accused, who ignored him. In response, the Complainant tore down the fabric yet again; the Accused again crawled down from the ladder, according to Mr. Brown, and choked him a second time. Mr. Brown again backed up, said words to the effect of “whatever” and walked some distance around the corner, to work by himself. [ 21 ] He testified the Accused followed him around the corner, insisting that he was “the boss”. When the Complainant protested, the Accused lunged at him with the industrial scissors. Mr.

Brown testified he managed to brush the Accused away, and the two then argued before the Accused finally pushed him down a pile of rubble. [ 22 ] Notably, the Complainant testified he had resolved to report the matter to his supervisor, but elected not to when he realized, after looking at his watch, that the shift had almost ended. He went on to state that just before the conclusion of that days work, the Accused approached him and instructed him not to say anything to the Supervisor, whom he identified as “Kerry”. Mr.

Brown acknowledged that although “Kerry”, did in fact come to their area, he did not report the alleged incident; he denied seeing “Dave” at any point during that shift. [ 23 ] Mr. Brown explained that after finishing the shift, he showered, had supper and returned to his room. Later that evening, he testified, the Accused attended at his door, pushed aside another person who was present, entered the room and proceeded to slap the

Complainant in the face four or five times with an open palm. The Accused insisted the Complainant listen to him on the job. Mr. Brown testified that, on the advice of “Bryce”, the other individual who had been present in the room and witnessed the incident, he promised to do so. Before leaving, the Accused attempted to shake his hand, and he reluctantly obliged. As the Accused was leaving the room, Mr. Brown inquired as to what would happen if he refused to listen, at which point the Accused purportedly threatened to return and kill him. [ 24 ] According to Mr.

Brown, he didn’t report either incident at first, but after the alleged confrontation in his room, some co- workers made a complaint to a superior, and the police were subsequently notified. [ 25 ] He acknowledged having earlier provided a written statement to police, and further, that he had reviewed the same prior to giving his testimony. While he confirmed travelling to court with Mr. Jenkins, and confirmed further that the two had discussed the case the night before, he denied the two had done so en route to court from Saskatoon that morning.

Given the passage of time, he also conceded some difficulty in recalling events. [ 26 ] Under cross examination, Mr. Brown’s attention was drawn to portions of a 3 page written statement he had previously provided to investigators, part of which was in his own handwriting. He conceded that the statement made no mention of offering the Accused his own earplugs, nor for that matter, did it contain any reference to the fact he had repeatedly torn down the geotextile the Accused was attempting to fasten to the wall of the mine shaft. [ 27 ] Moreover, when confronted with this prior statement, Mr.

Brown conceded having previously accused Mr. Perekrestov of having merely “pinched” his throat twice, with his fingers, and conceded further that in the course of this prior statement, he explicitly denied the Accused had used “his whole hand” to choke the Complainant. He also acknowledged that contrary to his testimony in chief, wherein he alleged the Accused had slapped him with an open palm, four or five times on the evening of April 28, 2012, in his prior statement to investigators, he accused Mr. Perekrestov of punching him. [ 28 ] Mr.

Brown agreed that his earlier statement contained no reference to the Accused warning him to say nothing to “Kerry”, that he had initially accused Mr. Perekrestov of lunging at him with a knife, as opposed to scissors, and further, that his earlier statement contained no allegation that the Accused pushed him afterward. [ 29 ] When confronted with these apparent contradictions, Mr. Brown explained that when he initially provided the statement to investigators, he was shaken up by the incidents, and consequently had forgotten certain things. He again acknowledged that he and Mr.

Jenkins had discussed the case the night before giving their testimony in court. [ 30 ] The sole witness for the Defence was the Accused, Sergii Perekrestov, who elected to give evidence in his own defence. [ 31 ] With the assistance of an interpreter, Mr. Perekrestov testified that he had immigrated to Canada in August, 2008, from the Ukraine. [ 32 ] On April 28, 2012, he had been working at the K3 Mine near Esterhazy. According to the Accused, he had been assigned the task of installing the geotextile fabric that morning by “Kerry”, whom he described as both the site supervisor and foreman.

Upon returning from lunch, the Accused set to work completing the installation process, so as to ready the wall for the next phase. Initially, he explained, there were no issues; however, after a while the Complainant and Mr. Jenkins began confronting him for failing to wear earplugs. The Accused explained that his earplugs were some distance away, that it wouldn’t take him nearly as long to complete the work as it would to retrieve them, and that the next crew was waiting for him to finish so they could begin. [ 33 ] Mr.

Perekrestov testified that initially there was no swearing, but as things progressed, the Complainant began using profanities and swearing at him, and became offended at what he perceived to be the Complainant’s attempt to humiliate him. [ 34 ] According to the Accused, he advised he would get his earplugs once the job was completed, at which point, the Complainant

became agitated and proceeded to pull down the geotextile fabric the Accused had just fastened to the wall. The Accused got down from the ladder, told the Complainant that he had no time to play, as the job needed to be done so the next crew could begin; he then pushed Mr. Brown away. [ 35 ] He then climbed the ladder and began re-installing the fabric, only to have the Complainant tear it down yet again. Once again, according to the Accused, he got down from the ladder and pushed the Complainant aside to retrieve the fabric.

The Accused denied laying a hand on the Complainant except to push him away so as to retrieve the fabric. [ 36 ] After the Complainant had torn down the fabric for the second or third time, the Accused testified he got down from the ladder to retrieve the industrial scissors so as to trim the excess fabric.

The Complainant stood there calling him names, at which point the Accused submits, with scissors in hand, he stepped forward and said words to the effect of “If you don’t like working with me, you can go work with another crew”. [ 37 ] At this point, he says, the Complainant accused him of trying to attack him with the scissors, to which the Accused replied “you must be an idiot or smoking something”. [ 38 ] According to Mr. Perekrestov, both the Complainant and Mr. Jenkins were present when “Kerry” arrived at the site approximately a half hour later.

The Accused submits he spoke with “Kerry”, and asked him to transfer the Complainant to a different crew, but was instructed to simply ignore him. The Accused testified that later, “Kerry” directed the Complainant and Mr. Jenkins to work in a different area, around the corner, which they did, and that was the end of the incident. [ 39 ] Mr. Perekrestov denied having instructed the Complainant to say nothing to the supervisor about the alleged incident, but did testify that later in the shift, he advised Mr. Brown and Mr.

Jenkins that he had spoken to “Kerry”, about them; according to the Accused, the two just smiled at him. [ 40 ] He acknowledged that he attended to the Complainant’s room later that evening, at around 8 pm, where he found Mr. Brown in the company of a friend. [ 41 ] He explained he wanted to speak with the Complainant to determine what had gone wrong between them earlier in the day. They greeted one another at the door and initially, he says the atmosphere was clam and neutral. However, as the discussion progressed, it became more heated. Mr.

Perekrestov asked the Complainant why he refused to listen to him earlier in the day, to which Mr. Brown responded that the Accused was not his boss. According to the Accused, when things began to escalate, and the Complainant began once again to swear at him, he left the room. [ 42 ] Mr.

Perekrestov denied that any physical contact took place whatsoever that evening, and explained that while he and the Complainant stood facing one another, the third individual, a friend of the Complainant’s from Ontario, was standing directly behind him. [ 43 ] Upon leaving the Complainant and the co-worker from Ontario, the Accused returned to his own room, put on headphones and began playing video games.

There he was subsequently arrested. [ 44 ] Under cross examination, the Accused conceded the Complainant did not stand on the fabric after pulling it down, but rather stood beside the ladder holding the fabric in his hand, and when the Accused pushed him, Mr. Brown released his hold on it.

He conceded that the Complainant had done nothing to suggest he was consenting to the pushes. [ 45 ] He maintained the Supervisor, “Kerry”, never spoke with him about the Complainant’s allegations that he had been choked or pushed, and as for the alleged incident with the scissors, the Accused denied lunging at him, and explained that there was some distance between himself and the Complainant, perhaps 6 feet. [ 46 ] He went on to explain that he had attended at the Complainant’s room later that evening because the two would have to work the same shift again the following morning, and he wanted to determine what had gone wrong; when the conversation escalated, he left.

Mr. Perekrestov denied ever threatening the Complainant in any fashion. ANALYSIS [47] Count 1 on information 24476128 alleges that the Accused assaulted the complainant, contrary to

section 266 of the CriminalCode, while count 2 alleges he threatened Mr. Brown, contrary to

section 264.1(

a) of the Code. [48] The Crown asserts in

summary, that the Accused attended at Mr. Brown’s room on the evening of May 28th, and that aftersome discussion, the Accused began slapping the Complainant about the face; that the Accused insisted the Complainant listen to himon the job, and that when the Complainant inquired as to what would happen if he did not, the Accused threatened to come back and killhim. [49] Mr. Perekrestov, for his part, denies that that he assaulted or threatened the Complainant that evening in any way. He claimsthat he went to Mr.

Brown’s room that evening simply to determine what had gone wrong between them earlier in the day; as thediscussion between the two degenerated into ridicule and obscenities, it became clear to him there was nothing to be gained, and hedeparted without incident. [50] Although there was by all accounts a third individual in the room at the time of the alleged incident, a co-worker and friend ofMr. Brown’s from Ontario known only as “Bryce”, the Crown did not tender this potential witness. [51] As such, the essential issue to be determined in this case is principally one of credibility.

Bearing in mind that that thepresumption of innocence is a fundamental tenet of our justice system, and that the burden rests with the Crown to prove each of theconstituent elements of the offence beyond a reasonable doubt, guidance in this regard must be had in the principles set forth by the Supreme Court of Canada in R. v. W. (D.) (1991), (SCC), 3 C.R. 4th 302 (S.C.C.), and subsequently refined by theSaskatchewan Court of Appeal in R. v. McKenzie (1996), (SK CA), 141 Sask. R. 221 (Sask. C.

A.); that is to say: 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 evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [52] Assessing the evidence as a whole within the context of the analytical framework set forth above, I find that the Crown hasfailed to prove either allegation to the requisite criminal standard.

While I may not necessarily believe the Accused’s version of events, Iam certainly left with a reasonable doubt as to his guilt. [53] Having had the benefit of observing each of the witnesses, I noted that the Accused gave his evidence in a calm, composedmanner throughout. By contrast, neither the Complainant, nor the Crown’s first and only other witness, Nyall Jenkins, held upparticularly well under cross-examination, and Mr. Brown failed to offer any satisfactory explanation for a series of troublingcontradictions in his testimony when confronted with his prior statement to authorities.

[ 54 ] Whereas, for example, he had asserted in his prior statement to authorities that the Accused lunged at him with a knife during the alleged incident at the mine site, he testified in court that the weapon employed by the Accused was actually a pair of scissors. Further, and despite his previous statement to police alleging the Accused merely pinched his throat, using only his fingers, he testified in court that he had been choked, and that the Accused had employed his whole hand to do so.

He also conceded that in his prior statement he made no mention of repeatedly tearing down the geotextile fabric while the Accused attempted to fasten it to the wall. [ 55 ] Apart from asserting that he was shook-up at the time he provided his statement to investigators, Mr.

Brown had no convincing explanation for why he had neglected to mention the Accused had pushed him nearly down a rubble hill after lunging with the scissors, nor had he made any mention in his prior statement of the fact that the Accused instructed him to say nothing of the incident to their Supervisor, “Kerry”. [ 56 ] It is also difficult to reconcile Mr. Jenkins’ insistence that both he and Mr.

Brown reported the alleged incidents at the mine site to their Safety Specialist, “Dave”, later in their shift, with testimony of the Complainant himself, who was adamant that he made no such report to anyone until later that evening, and further, that it wasn’t “Dave”, but rather the Foreman/Supervisor, “Kerry”, who was on scene that day. [ 57 ] These numerous contradictions, coupled with the fact that both Mr. Jenkins and Mr. Brown acknowledged having discussed their recollection and forthcoming testimony with one another the evening before trial, and if Mr.

Jenkins is to be believed, en-route to court that day, makes the veracity of their testimony as a whole, highly suspect. [ 58 ] Moreover, it was readily apparent that that the Complainant and Accused are roughly the same size and build, and the former’s testimony left one wondering why the Complainant, who had instigated the confrontation by taunting the Accused and repeatedly undermining his efforts to complete the task at hand, and who claimed to have brushed away the Accused as he lunged at Mr.

Brown with scissors earlier in the day, would nonetheless lie there passively and allow himself to be struck about the face repeatedly, without resisting or calling for the assistance of his co-worker, “Bryce”. [ 59 ] Both gentlemen testified to the presence of this third individual in the room, whom the Accused described as physically fit and apparently strong.

According to the Accused, this individual was standing directly behind him during the alleged incident in the Complainant’s room. [ 60 ] It is difficult to accept, and indeed, does not accord with common sense or reason that the Accused would physically assault the Complainant and threaten his life, while the Complainant’s larger friend, “Bryce” stood directly behind Mr. Perekrestov. [ 61 ] Count 3 on Information #24476103 alleges the Accused assaulted the Complainant with a weapon, specifically, scissors, contrary to

section 267 (

a) of the Criminal Code . [ 62 ] Again, for the reasons set forth above, I find the Crown has failed to prove the offence beyond a reasonable doubt. [ 63 ] The Complainant testified that the Accused lunged at him with industrial scissors. However, in his prior written statement to police, Mr.

Brown described the weapon as a knife; his explanation for the inconsistency was simply not convincing, and he offered no credible explanation for his failure to report this very serious allegation to the site Supervisor during the shift when he had the opportunity, or indeed for that matter, at all until after the police became involved later that evening, and then only at the insistence of some co-workers. [ 64 ] The Accused conceded he had industrial scissors in his hand when he spoke to the Complainant, but denied lunging at him; he testified he dropped the scissors the moment Mr.

Brown accused him of trying to stab him, and told him he was crazy. [ 65 ] To the extent that corroboration of the Complainant’s version can be found in the testimony of Mr. Jenkins, it is of little or no weight, given the numerous other contradictions in their evidence and the fact that they had occasion to discuss their testimony in preparation for court.

[ 66 ] Counts 1 and 2 of the Information each allege separate acts of simple assault, but are phrased in identical terms, and are wanting in particulars sufficient to distinguish one from the other. The issue was raised with counsel at the outset of the trial, and both Crown and Defence advised they understood the allegations, and that further particulars were not necessary.

In the course of final argument however, and well after the Crown and Defence had closed their respective cases, it became clear that this was not the case. [ 67 ] The Crown’s position is that Count 1 of the Information relates to the alleged acts of choking the Complainant, while count 2 relates to the alleged act of subsequently pushing the Complainant, when the two were around the corner in the mine shaft. [ 68 ] The Crown submits further, with respect to count 1 of the Information, that although the Accused denied having choked or pinched the Complainant’s neck, he did admit to having pushed the Complainant at least twice when he was retrieving the geotextile fabric from him, that this was without the Complainant’s consent and that as such, he must be found guilty in respect of this first count. [ 69 ] Counsel for the Defence pointed out that it had previously requested particulars of the Crown and, in that regard, produced a letter he had received from a representative of the local RCMP, purporting to provide the same.

The relevant text of that letter, as reproduced in the Crown’s brief of March 7 th , 2013, states: ... The second information [24476103] are the charges that took place at work during the day on the April 28, 2012. It is alleged the accused grabbed the victim by the throat two times. The accused also tried stabbing the victim with scissors. ... [ 70 ] The Defence submits it was misled by the letter, that the Accused was thereby potentially prejudiced and that the Crown should be held to the particulars furnished therein.

The Crown in turn denies that there is anything on the record to demonstrate that particulars were provided at all, and in the alternative, if the Court finds the aforementioned letter to be anything more than mere “clarification or disclosure”, then it should have been read into the record, and in the further alternative, that Defence Counsel failed to raise the issue on the record. [ 71 ] Finally, the Crown invites the Court to amend the Information, so as to accord with what it submits to be the evidence, by the inclusion of the words “by grabbing the throat, choking or pushing”. [ 72 ] The Crown’s request in this regard is governed by

Section 601 of the Code , which provides as follows: Amending defective indictment or count 601.

(1) An objection to an indictment preferred under this Part or to a count in an indictment, for a defect apparent on its face, shall be taken by motion to quash the indictment or count before the accused enters a plea, and, after the accused has entered a plea, only by leave of the court before which the proceedings take place. The court before which an objection is taken under this

section may, if it considers it necessary, order the indictment or count to be amended to cure the defect. Amendment where variance

(2) Subject to this section, a court may, on the trial of an indictment, amend the indictment or a count therein or a particular that is furnished under

section 587, to make the indictment, count or particular conform to the evidence, where there is a variance between the evidence and (

a) a count in the indictment as preferred; or (

b) a count in the indictment (

i) as amended, or (ii) as it would have been if it had been amended in conformity with any particular that has been furnished pursuant to

section 587. Amending indictment

(3) Subject to this section, a court shall, at any stage of the proceedings, amend the indictment or a count therein as may be necessary where it appears (

a) that the indictment has been preferred under a particular Act of Parliament instead of another Act of Parliament; (

b) that the indictment or a count thereof (

i) fails to state or states defectively anything that is requisite to constitute the offence, (ii) does not negative an exception that should be negatived, (iii) is in any way defective in substance, and the matters to be alleged in the proposed amendment are disclosed by the evidence taken on the preliminary inquiry or on the trial; or (

c) that the indictment or a count thereof is in any way defective in form. Matters to be considered by the court

(4) The court shall, in considering whether or not an amendment should be made to the indictment or a count in it, consider (

a) the matters disclosed by the evidence taken on the preliminary inquiry; (

b) the evidence taken on the trial, if any; (

c) the circumstances of the case; (

d) whether the accused has been misled or prejudiced in his defence by any variance, error or omission mentioned in subsection (2) or (3); and (

e) whether, having regard to the merits of the case, the proposed amendment can be made without injustice being done. Variance not material

(4.1) A variance between the indictment or a count therein and the evidence taken is not material with respect to (

a) the time when the offence is alleged to have been committed, if it is proved that the indictment was preferred within the prescribed period of limitation, if any; or (

b) the place where the subject-matter of the proceedings is alleged to have arisen, if it is proved that it arose within the territorial jurisdiction of the court. Adjournment if accused prejudiced

(5) Where, in the opinion of the court, the accused has been misled or prejudiced in his defence by a variance, error or omission in an indictment or a count therein, the court may, if it is of the opinion that the misleading or prejudice may be removed by an adjournment, adjourn the proceedings to a specified day or sittings of the court and may make such an order with respect to the payment of costs resulting from the necessity for amendment as it considers desirable. Question of law

(6) The question whether an order to amend an indictment or a count thereof should be granted or refused is a question of law. Endorsing indictment

(7) An order to amend an indictment or a count therein shall be endorsed on the indictment as part of the record and the proceedings shall continue as if the indictment or count had been originally preferred as amended. Mistakes not material

(8) A mistake in the heading of an indictment shall be corrected as soon as it is discovered but, whether corrected or not, is not material. Limitation

(9) The authority of a court to amend indictments does not authorize the court to add to the overt acts stated in an indictment for high treason or treason or for an offence against any provision in sections 49, 50, 51 and 53. Definition of “court”

(10) In this section, “court” means a court, judge, justice or provincial court judge acting in

summary conviction proceedings or in proceedings on indictment. Application

(11) This

section applies to all proceedings, including preliminary inquiries, with such modifications as the circumstances require [ 73 ] With the greatest of respect to the Crown, particulars were requested, and it was reasonable for Defence counsel to conclude it had been provided with the same in the form of the details provided in the aforementioned letter.

To amend either or both counts, in circumstances such as these, where the Defence has relied upon those representations and both parties have closed their respective cases, would in many instances have the potential to cause irreparable prejudice to the Accused, and would go directly to the issue of trial fairness; in many instances, that prejudice could not be remedied effectively by the granting of an adjournment as contemplated by section 601(5). [ 74 ] That however, is not the end of the issue with respect to count 1 of the Information.

In the present case any such prejudice is remedied by the Accused’s own testimony. [ 75 ] The definition of assault is set forth in

section 265 of the Criminal Code , which provides: Assault 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; (

b) he attempts or threatens, by

an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or (

c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs. Application

(2) This

section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault. Consent

(3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of (

a) the application of force to the complainant or to a person other than the complainant; (

b) threats or fear of the application of force to the complainant or to a person other than the complainant; (

c) fraud; or (

d) the exercise of authority. Accused’s belief as to consent

(4) Where an accused alleges that he believed that the complainant consented to the conduct that is the subject-matter of the charge, a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instruct the jury, when reviewing all the evidence relating to the determination of the honesty of the accused’s belief, to consider the presence or absence of reasonable grounds for that belief. [ 76 ] For the reasons stated above, the evidence falls short of establishing beyond a reasonable doubt that that the Accused choked or otherwise grabbed the Complainant’s throat as alleged. [ 77 ] However, Mr.

Perekrestov candidly admitted in the course of his testimony that he twice pushed Mr. Brown while the latter was holding the geotextile fabric, and conceded that the Complaintant had done nothing to suggest he had consented to the same. While there can be little doubt that the Accused was provoked by the actions of the Complainant, in yelling obscenities and interfering with efforts to complete his task by repeatedly tearing down the geotextile fabric, provocation does not afford a defence to an allegation of assault, contrary to

section 266 of the Code . [ 78 ] I accept the Accused’s evidence in this respect and as such, he must be found guilty in any event. [ 79 ] Finally, with respect to count 2 of the Information, the particulars furnished by the Crown in this case allege that the Accused attempted to push the Complainant, after lunging at him with a pair of scissors.

Once again, after considering all of the evidence which I accept, I am unable to determine which version of events to believe, and am satisfied, moreover, that the Accused’s version could reasonably be true. [ 80 ] For the reasons set forth herein, he Accused is guilty on count 1 in Information # 24476103, but not guilty on each of counts 2 and 3, and not guilty with respect to both counts on Information #24476128. [ 81 ] My thanks to counsel for their able assistance in this matter. ________________________ D. C. Chow, J