R v Lee, 2023 ABCJ 117

In the Alberta Court of Justice Citation: R v Lee, 2023 ABCJ 117 Date: 20230524 Docket: 220691778P1 Registry: Okotoks Between: His Majesty the King - and - Cody Aaron Lee Decision of the Honourable Justice J.D. Williams Overview [1] Cody Aaron Lee (the Accused) is charged with a single count of common assault between the 1st day of March 2018 and the 31st day of January 2022. [2] The complainant is his former spouse Maude Holly (Ms.

Holly). [3] The couple are currently separated, but at the time of the alleged incidents were married. [4] The analysis for a single count of common assault is often relatively straightforward particularly where there is no physicalevidence and only two witnesses providing contrary accounts. This case, however, is more involved as the complainant, Ms.

Hollytestifies to five distinct incidents of physical assault allegedly perpetrated by the Accused in the time frame covered by the datesspecified in the Information. [5] Each of these allegations is encapsulated in a single charge of common assault. [6] The Accused denies the assaultive behaviour alleged by Ms. Holly while admitting a lack of memory relating to several ofthe incidents alleged. [7] The case requires a R v. W(D), (SCC), [1991] 1 SCR 742 analysis having consideration of each of the five

allegations. Witness Testimony Evidence of Ms. Holly [ 8 ] For clarity I will refer to the five circumstances of physical violence alleged by Ms. Holly through descriptive titles. These descriptive titles will be, The Drugging Incident, The Anniversary Incident, The Water Bottle Incident, The New Year’s Incident and The Lost Keys Incident. The Drugging Incident [ 9 ] Ms. Holly testifies that in 2018, a few days prior to a family trip to the Grand Canyon, the Accused returns home from the men’s club in town, late Wednesday night, incredibly intoxicated.

Both he and she ultimately believe he consumed drugs without his knowledge. Ms. Holly indicates she has not seen him this intoxicated previously. The Accused urinates on his arcades and, in an attempt to stop him, Ms. Holly gently tries to “redirect” him. In response, he shoves and punches her in the face multiple times. He punches her with his right hand striking the left side of her face specifically in the chin area. The assault results in bruising on her right shoulder and chin which she says is gone by the time they went to the Grand Canyon a few days later. The Anniversary Incident [ 10 ] Ms.

Holly testifies that in May 2020, the Accused shoves her to the ground. He then stands over her and holds her down while repeatedly striking her on the left side of the face with his left hand. Her head strikes the floor each time he strikes her and she ends up with a black eye. She calls his parents for help and when they arrive his father takes him for a drive. The Water Bottle Incident [ 11 ] Ms. Holly testifies that in November 2020, the Accused throws a water bottle at her one evening, hitting her in the stomach. This occurs while they are both sitting up in bed and he is intoxicated.

She takes the bottle and empties its contents on his head. The bottle is half full when she dumps it on him. In response, he places a pillow over her face, punches the pillow hitting her face and suffocates her until she loses consciousness. She indicates she has a bloody nose after the assault. The New Year’s Incident [ 12 ] Ms. Holly testifies that on New Year’s Eve 2020, she, the Accused and their two children sat together watching movies. The Accused is drunk and she is high having consumed marijuana. The dog nips their son’s face and the Accused starts beating the dog. Ms.

Holly intervenes grabbing the dog and taking him to the bedroom to put him in the kennel. The Accused follows her to the room, pushes her on the bed, picks up the kennel and drops it from a height, kicks the kennel and punches her in the face. She “blacks out” and urinates herself. She indicates that she is terrified. The punches result in her getting black eyes. She is worried the dog is dead in the kennel but determines that the dog is uninjured. The Lost Keys Incident [ 13 ] Ms. Holly testifies that in February 2021, the Accused loses his keys in the snow.

While he is at work, she looks for his keys all day which she ends up finding. When the Accused returns home from work, he demands she show him where she found the keys. She goes outside and points as he watches her through the window. When she comes back inside the house, he shoves her knocking her into a thermometer which breaks. The children are present for this incident. [ 14 ] Ms. Holly testifies that she didn’t seek medical help after these allegations because she is concerned Child and Family Services (CFS) will find out and take her son.

Evidence of the Accused [ 15 ] The Accused denies almost all physical violence. He admits throwing a water bottle toward Ms. Holly, possibly throwing a pillow at Ms. Holly and “pushing through” Ms. Holly in an attempt to get to the dog. The Drugging Incident [ 16 ] The Accused denies any memory of the alleged violence this evening. He testifies to his belief that he was slipped drugs at the bar or men’s club that night. He remembers getting up the next day and going to work. The Anniversary Incident [ 17 ] The Accused testifies that he has no memory of this Incident. It wasn’t very memorable.

He denies any violence.

The Water Bottle Incident [18] The Accused testifies that he remembers this incident, but Ms. Holly, in his memory, is standing against the bedroom wallwhen he throws the water bottle. He does not throw the bottle at her although concedes it may have hit her after hitting the wall. Aftershe dumps the water on him, he says “my side of the bed was wet” so he gets up and leaves. He has no memory as to where he goes. Hemakes no mention of a pillow, but when asked about her allegation with the pillow he says, “I may have thrown a pillow at her.” Hedenies suffocating her with the pillow and punching her through it.

The New Year’s Incident [19] The Accused testifies that on New Year’s Eve the family is watching a movie and the dog nips their son on his nose. This nipcauses white marks, but no redness or bleeding. He disciplines the dog and Ms. Holly says, “what did Bentley [son] do?” This upsetsthe Accused as he feels she is blaming their son. He says, “It has nothing to do with Bentley, your dog bit our son’s face and this is howyour gonna handle it, blaming him?” The Accused testifies that she is more concerned with the dog than Bentley and he is upset as tohow she handled the situation.

He remembers kicking the kennel but doesn’t remember much else. He testifies, “I don’t remember. Imight have bumped her getting to the kennel. There wasn’t a lot of room. He didn’t like the way she disciplined the dog. It was, “veryupsetting how she handled the situation.” He says he doesn’t remember shoving her in the living room, denies shoving her in thebedroom and denies punching her in the face. The Lost Keys Incident [20] The Accused testifies that in February 2021, Ms. Holly wouldn’t help finding his keys prior to his leaving for work and hewas upset.

When he gets home from work, she still hasn’t found the keys, so he goes and has a shower. She did eventually find the keysand he thanks her for it. He does not recall shoving her. Counsel Submissions [21] The Crown argues that the evidence of Ms. Holly proves the case beyond a reasonable doubt. [22] The Crown argues that her demeanor and emotional response is consistent with a person who has been physically abused inthis manner. [23] Defence counsel submits that the evidence of Ms.

Holly is neither credible nor reliable pointing to inconsistencies between heroriginal statement and testimony. [24] Defence argues that the Accused’s version of events is believable and should be accepted. In the alternative, if his version isnot accepted, Defence submits it should raise a reasonable doubt sufficient to warrant an acquittal. [25] Finally, Defence indicates that the timing of Ms. Holly’s original statement to police in June is motivated by the loss ofcustody of her son which happened the same day. Ms. Holly’s anger at losing primary care of their son causes her to concoct theseallegations.

Law and Analysis Single Count Information [26] Having a single count of common assault charged between dates to encapsulate five distinct allegations of domestic assaultcomplicates the assessment in this case. [27] The five distinct allegations are each attributed to a specific month and year in Ms. Holly’s evidence and she provides detailsof the significance of the date for three of these five allegations which she attributes as a reason for her distinct memory.

The allegationsarising with respect to distinct memory events include a trip to the Grand Canyon in 2018, her wedding Anniversary in 2020 and NewYear’s Eve 2020. [28] I sought clarification from the Crown respecting this charging practice and he provides R v. Sandhu, 2009 ONCA 102, 2009 ONCA102. [29] In Sandhu, counsel argues that

section 581 of the Criminal Code of Canada prohibits a single count being charged toencompass a grouping of allegations except in specific circumstances such as cases where there is a child witness. [30]

Section 581 of the Code states, 581

(1) Each count in an indictment shall in general apply to a single transaction and shall contain in substance a statement that theaccused or defendant committed an offence therein specified. [31] The Court in Sandu is dealing with several instances of domestic violence and rejects the argument that a between date singlecount charging practice is only acceptable in cases involving child witnesses.

[32] I find the analysis in Sandhu is helpful in this instance for two reasons. [33] First, it is conceded by defence in Sandhu that, a single count “may encompass a number of separate incidents over a lengthyperiod of time”, Regina v. Hulan (ON CA). [34] The Hulan decision cited in Sandhu is a case where multiple sexual assaults are perpetrated on an 11-year-old girl by a personwho is in a position of authority over her.

In those circumstances the court finds that all the incidents constitute a single transaction. [35] I find the allegations in this case also constitute a single transaction. [36] Second, in the present case, much like Sandu, the defence for each of the allegations is the same. [37] Here, the Accused denies the assaults took place and suggests that Ms.

Holly concocted the allegations after being informedshe was losing primary care and custody of her son to the Accused. [38] The fact that the Accused does not have varying or distinct defences to the individual allegations means that he is notprejudiced by a single count information. [39] Ultimately, I find that it is within the discretion of the Crown to determine if they wish to proceed in this manner where asingle count is intended to encapsulate several allegations of violence. R v. W.D.

Analysis [40] R v W(D), (SCC), [1991] 1 SCR 742, creates a three-step analytical framework intended for use by judgesand juries when faced with contradictory accounts. [41] This analysis is refined by several subsequent cases including R v Ay, (1994) (BC CA), 93 CCC (3d) 456(BCCA), R v CWH, (BCCA) and R v Ryon, 2019 ABCA 36. [42] I accept, as a result of these refinements, that I must apply the test to all exculpatory evidence presented R v. Ryon and if, aftercareful consideration of all this evidence, I am unable to decide who to believe I must acquit R v. CWH. [43] The steps as set out in R v W(

D) as originally framed are: i. If you believe the evidence of the accused, you must acquit ii. If you do not believe the evidence of the accused, but you are left in reasonable doubt by it, you must acquit iii. Even if you are not left in doubt by the evidence of the accused, you must ask yourself if, on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by the evidence of the guilt of the accused [44] Traditionally this process dictates the assessment of the accused’s evidence first.

While I recognize I have discretion in theorder in which I assess the evidence in this case, I choose to follow the traditional process. [45] In assessing the evidence of the Accused, I find that his version is coloured by his feelings about Ms. Holly and the passage oftime. [46] During his marriage to Ms. Holly, they as a couple suffered traumatic events including the sexual abuse of their children at thehands of a neighbour which impacted each of them and which he believes resulted in Ms.

Holly “giving up” on many things in their livesincluding what was a successful photography business she ran. [47] The Accused’s testimony includes repeated indications that he does not remember specific and relevant aspects of theallegations made by Ms. Holly. [48] I accept an individual alleged to have committed offences may indicate a lack of memory of specific dates, includingcircumstances in this case such as the Anniversary incident where he denies any physical violence but does not have any real memory ofhis Anniversary in 2020. [49] This is in line with the principle stated in R. v.

McIntosh, 2010 ABCA 352 , [2010] AJ 1331 (CA), at paragraph 12, there are no doubt plenty of situations in which one might fairly ask “what more can an accused do” than offer a denial under oath andopen himself up to cross-examination. [50] A lack of memory in an instance of this kind given his testimony that nothing of significance happened on that Anniversary isreasonable. [51] It is also reasonable that he testifies to no memory of the Drugging Incident given his level of intoxication and the fact thatthis incident occurred in 2018, five years prior to his testimony at trial. [52] Both he and Ms.

Holly testify to the extreme nature of his intoxication and, in that circumstance, it is reasonable that he nothave a memory.

[ 53 ] Where I find his indication of a lack of memory troublesome and where it impacts the credibility assessment of his evidence is as it relates to the Water Bottle incident and the New Year’s incident. [ 54 ] These incidents are significantly closer in time to the trial and it is clear that the events were, at least in part, memorable from the perspective of the Accused. [ 55 ] In these latter instances, I find his testimony as to a lack of memory to be a tactic utilized to deny responsibility. [ 56 ] It is clear that the Accused wishes to make clear to the court that he is not an aggressive or violent person generally.

He testifies to this fact and uses his experience as a hockey referee as proof that he is not quick to anger. [ 57 ] Further, he testifies that these incidents always end with him leaving, but the details of his leaving as it relates to the Water Bottle Incident and the New Year’s Eve incident are to him in his memory blurry or non-existent. [ 58 ] He initially testifies in the Water Bottle Incident that he threw the water bottle at the wall and after she picks it up and dumps it over his head, his side of the bed is wet so he leaves the room, but he cannot state whether he simply went into another room in the house or whether he left the house entirely. [ 59 ] This series of events, however, is adjusted later in his testimony when he says “I might have thrown a pillow at her.” There are no further details about this or how it sequentially fits within his memory of the events, but this makes it clear that his memory of the occurrence is not complete and on that basis his denial which is, for all purposes, a flat denial is not in my view reliable. [ 60 ] Further, I find that his memory is not reliable as it relates to the New Year’s incident.

He originally denies any physical violence towards Ms. Holly on that occasion, but then in cross examination he acknowledges knocking her onto the bed in an effort to get to the dog. He tries to mitigate this conduct by describing how close the bed was at the time and how short her fall would be. I presume that he mitigates in this fashion to suggest that he did not intend to apply force knocking her down, but it is clear on all of the evidence of this incident that he is extremely angry not only with the dog, but also with Ms. Holly and her dealings with both their son and the dog.

I reject his version of events relating to this incident. [ 61 ] In making these findings I am reminded of the words of Anderson PCJ in R. v. Rana , [2010] AJ 697 (PC) at paragraph 14 : The accused's denial is given under oath but a denial, standing on its own is just that, sworn or not. It is impossible to assess the veracity of a denial without more.

The strength of a denial depends entirely on context. [ 62 ] Specifically, as it relates to the Drugging Incident and the Anniversary Incident, I accept he has no memory for the reasons stated, in the first case his level of intoxication and in the second case because there were no events of significance in his view which occurred. [ 63 ] This leaves only his evidence relating to the Lost Keys Incident and again there is a flat denial, but he does recall the incident and simply states, “she found my keys, why would I push her?” There is nothing specific that I point to reject his testimony on this incident. [ 64 ] I recognize that “the lack of credibility on the part of the accused does not equate to proof of his or her guilt beyond a reasonable doubt” R. v.

J.H.S . , [2008] 2 S.C.R. 152, 2008 SCC 30 and I will now assess Ms. Holly’s evidence. [ 65 ] Ms. Holly’s evidence is presented in a loud tone of voice.

She is at times emotional, she interrupts counsel on occasion, and she makes statements with respect to her distaste for the process itself. [ 66 ] It is clear from her evidence and her physical presentation that she is angry with the Accused and angry with CFS and the criminal justice system. [ 67 ] She testifies that she doesn’t want to be a part of the court process. [ 68 ] While her presentation is not what we might normally see from witnesses under oath, I find that she is a credible witness. [ 69 ] The reasons for this finding relate to the specifics of what she said.

She was prepared in each instance where it was suggested to her that there was an inconsistency in her evidence to accept that fact or to provide an explanation as to why that inconsistency existed. [ 70 ] Further, she is in her own way was polite and contrite with counsel even when they were in the midst of contradicting her. [ 71 ] One specific example of this occurred when Defence offered to show her evidence of what Defence suggests is a contradiction and she declines seeing the material saying, “I trust you.” [ 72 ] This in my view shows that she was not trying to present herself as infallible, but simply wanted the truth to be presented. [ 73 ] While I accept that Ms.

Holly is a credible witness I note several instances within her testimony that suggest her memory is not reliable.

One substantive distinction between her testimony on the record and her statement to police relates to the Drugging Incident in 2018 where on the stand she describes being punched by the Accused and in her statement she can be seen demonstrating his action on that date to police and it is not a punch but a hand thrown over his shoulder at the person behind him. [ 74 ] I am not satisfied that her memory is particularly reliable as it relates to this Incident for reasons she provides in her testimony including that there were multiple incidents which could cause confusion, that she was very worried about her spouse because she believed him when he told her he was drugged and that she wanted to salvage her marriage at the time and had no intention of reporting the incident to the police.

[75] I also note that she had not watched her statement to refresh her memory prior to testifying. [76] I accept there are other inconsistencies between her police statement and her testimony, but I accept her explanations for theseinconsistencies including why she told the police she “blacked out” during the New Year’s Incident which she should have described as“zoning out” and the reason that she provided more detail in November in her written statement than she had previously when speakingto police in June because she “didn’t know her words could be taken as evidence” until she spoke to a lawyer who had volunteered toassist her in understanding the process. [77] Ultimately, on an overall assessment of her evidence, I find it to be credible.

I reject the argument that she concocted theseallegations out of anger having lost custody of her son to the Accused. [78] I accept that she went directly to the police after the meeting in June with Child and Family Services (CFS), not because theseallegations are lies, but because CFS would not listen to her allegations unless she reported them to the police and went through thecriminal process. [79] The fact that I find her to be a credible witness, does not mean that I find the Crown has proven each of the Incident’s allegedbeyond a reasonable doubt having considered all of the evidence. [80] Proof beyond a reasonable doubt is a high standard because the accused is presumed innocent.

R v Lifchus, (SCC), [1997] 3 SCR 320, states it clearly It is insufficient to prove that an accused is “probably guilty” or “likely guilty”. If I find the accused is only “probably guilty” then Imust conclude that the requirement for proof beyond a reasonable doubt has not been achieved.

An acquittal must be the inevitableresult in such situations. [81] Considering the inconsistencies that do exist and the evidence of the Accused which as I have noted is reasonable in certainaspects, particularly as it relates to the Drugging Incident and the Anniversary Incident, I am left not knowing who to believe and so onthat basis I do not consider those facts in my ultimate finding. [82] Further, inconsistencies in the Water Bottle Incident with both parties’ testimony leave me uncertain as to who I believe. [83] Ultimately, I find that the Crown has proven beyond a reasonable doubt a single allegation of common assault on the basis ofthe allegation made relating to the New Year’s incident. [84] The facts I find that have been proven beyond a reasonable doubt are that the Accused and Ms.

Holly are at home on NewYear’s Eve 2020 watching a movie when their dog nips their son resulting in the Accused becoming angry with both the dog and Ms.Holly as a result of the inappropriate manner the Accused felt Ms. Holly favoured the dog. He disciplines the dog in the living room butis extremely angry with not only the dog but also Ms. Holly so he follows Ms. Holly who has left with the dog into the bedroom. He seesher at the kennel and intentionally pushes her out of the way and kicks the kennel. He then strikes Ms.

Holly while she lies on the bedand she zones out. [85] There is no further reliable evidence from that point. Conclusion For the above reasons, I find that the Crown has met their burden of proof and I am convicting the Accused of a single count of commonassault on the facts as I have noted them. Dated at the City of Calgary, Alberta this 24th day of May, 2023 J.D. Williams A Justice of the Alberta Court of Justice

Appearances: R. Ziegler for the Crown M. McAvoy for the Defence