R. v. W., 2013 QCCQ 8251

R. c. McLeod 2013 QCCQ 8251 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF ABITIBI TOWN OF WASKAGANISH Criminal Division Nos. 640-01-024891-112 and 640-01-024893-118 DATE: May 22, 2013 ______________________________________________________________________ PRESENT: THE HONOURABLE DENYSE LEDUC J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Plaintiff v.

NATHAN MCLEOD, REJEAN MCLEOD AND KRISTEN KATAPATUK Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The accused Kristen Katapatuk faces two counts of assault of M. B. and D. S.; the accused Nathan McLeod and Rejean McLeod face charges of assault on D. S., all punishable on

summary conviction according to

section 266 (

b) of the Criminal Code . [ 2 ] The main issue is to determine the credibility of the different versions given by the witnesses, according to the test proposed by the Supreme Court of Canada in R. v. W. (D.) . [ 3 ] For the prosecution, the two victims, M. B. and D. S., and their friend who was present during the incident, Corrine Hester, were heard. [ 4 ] For the defence, the accused Kristen Katapatuk and Rejean McLeod testified. [ 5 ] For a good understanding of the facts, it is advisable to relate the testimony of each witness. [ 6 ] The complainant M.

B. related that she was walking on the night of June 11, 2011 on Harricana Street in Waskaganish with her boyfriend, D., and some friends. She had had arguments and exchanged text messages with Kristen before, about which she had asked for police intervention and about which the police had done nothing. Her boyfriend walked up to Kristen and was talking to her. Kristen then hit him. Two boys, the McLeod brothers, arrived on the scene and fought with D.. Then Kristen went after M., grabbed her shirt, pulled on it and made her fall down.

Kristen banged her head on the ground a few times until Audrey Blackned intervened. Then the police arrived while Nathan was fighting with D.. [ 7 ] The victim reported that she saw the accused coming and knew that she wanted to beat her because of the text messages received previously. As the police were not solving the problem, she and her boyfriend tried to do so by themselves. She saw Kristen punching D. in the face. D.’s reaction was to block her blows, then Kristen came toward her.

She did not see clearly that Nathan and Rejean McLeod pushed D., but at one point saw them attacking D., and then Kristen attacked her. [ 8 ] The second victim, D. S., confirmed that he was walking with his girlfriend, M., and other friends when he saw Kristen, the girl who had insulted his girlfriend many times. He walked up to her to have a talk. He repeated many times: “When will you stop insulting my girlfriend?” and Kristen punched him and he pushed her to the side. Rejean and Nathan came by and he pulled them down.

He fell with Nathan, and Rejean kicked him. [ 9 ] Nathan and Rejean McLeod were not with Kristen prior to that; they appeared once the argument with Kirsten had started. [ 10 ] In cross-examination, D. S. said that, since he saw Kristen and knew that she had assaulted his girlfriend, M., before and had written bad things, he wanted to settle their issue. Then he was grabbed by the sweater and fell down. He got kicked on the head while he was down and he saw Kristen on the top of his girlfriend. He succeeded in standing up, grabbed Nathan by the neck and realized when Nathan lost conscious.

Then the police arrived. [ 11 ] Corinne, M.’s friend, reported that, on that specific night, she was walking with M. and D. when they saw Kristen. D. went to

talk to Kristen and M. followed him. Kristen hit D., and the McLeod brothers came running and attacked D.. Kristen attacked M., who fell down. She saw Kristen giving a few punches. She alleged M. did nothing to Kristen, but she added that she could not see what happened. [ 12 ] She clearly saw Nathan and Rejean attacking D., but she did not report it to the police in the statement she made a year after the incident. [ 13 ] In cross-examination, Corinne testified that she only saw Kristen moving her arm as if to deliver a punch, but D. blocked it.

She added that it was dark outside and she could have missed part of the altercation. [ 14 ] The accused Kristen said that D. walked toward her, asked her when she would stop, and said that M. wanted to beat her up. He then stretched out his arms, making it impossible for her to leave. He kicked her legs and then left her to M., saying: “Go M., put her down”. [ 15 ] She heard Rejean asking them: “Why do you want to fight the girl?”, and then M. grabbed her. While she was down, M. tried to punch her, and she called her boyfriend for help.

She got up and saw D. chocking Nathan. [ 16 ] The accused had eight or six beers during the evening before the fight. Even so, she has a good recollection of the event. She saw D. coming towards her, he asked when she would stop, and then M. came up. D. kicked her first and pushed her. She fell down and saw M. coming. She got up, fought and knocked M. down. She was all over M., who was pulling her hair and punching her. M. let her go when she saw the police coming. She did not remember if a lady intervened to separate them.

At the time, she remembered Nathan was unconscious on the ground. [ 17 ] Rejean McLeod declared that he saw and heard the argument in the street. He saw D. pushing Kristen with his hands and Kristen falling down. He went to them, D. punched him and he punched him back. His brother Nathan joined them and asked D.: “Why are you fighting a girl?”. He saw D. choking Nathan; Nathan was then unconscious, and that is why he kicked D.. He acknowledged that he was drunk that night.

Kristen is his girlfriend, and it is when he saw her lying on the ground that he run toward them. [ 18 ] When credibility is important, the trial judge must be aware that the rule of a reasonable doubt applies to the issue. According to R. v.

W. ( D. ), [1] the trial judge should know that: (1) if he believes the evidence of the accused, he must acquit; (2) if he does not believe the testimony of the accused, but is left in reasonable doubt by it, he must acquit; (3) even if not left in doubt by the evidence of the accused, he still must ask himself whether he is convinced beyond a reasonable doubt of the guilt of the accused on the basis of the balance of the evidence that he does accept. [ 19 ] The assessment of the credibility of a witness or an accused person should be made not only on the basis of the person’s testimony, but also in light of all the evidence. [2] [ 20 ] The assessment can rely on the witness’s capacity for observation, the ability to recall the facts, the exactness of his statement or testimony, the way he testifies, his behaviour and the similarities or differences that emerge from the evidence. [ 21 ] The judge must analyze the sincerity of the witness, whether he is of good faith or reticent, and whether he is precise or vague. [ 22 ] The accused do not deny having fought with the victims, but argue that they were defending themselves.

Although the accused were under the influence of alcohol that night, they have a good recollection of the events and there are similarities in their testimonies. [ 23 ] Kristen admitted that she had a conflict with M.. While walking, she saw D., M., Corrine and others coming toward her. M. said she was usually afraid of Kristen, but that night, being with her boyfriend, D., and friends, she was not afraid any more. D. said he decided to confront Kristen; he wanted her to stop insulting his girlfriend and his child. He was mad because the police, to whom they had complained before a few times, did not intervene.

The witnesses M. and Corrine do not remember clearly who punched whom first, or where. Corinne did not see Kristen punching D.. Then Rejean McLeod intervened, followed by his brother. They fought with D., who assaulted Kristen first. Rejean, along with Nathan, fought D.. [ 24 ] Rejean intervened in the fight when he saw D. pushing Kristen with his hands and she fell down. He joined in and was punched in the face by D.. They fought and Nathan arrived. D. grabbed Nathan’s throat and chocked him.

Nathan was unconscious when the police arrived and they took D. away. [ 25 ] Although the Court does not give full credibility to the accused because of their drinking, they provided a consistent story of the incident. The fact that the victims wanted to make sure Kristen would stop sending messages and insults to M. adds to the explanation they provided. When D. walked toward Kristen, he wanted to settle a problem that had endured for too long. That gives more credence to Kristen’s and Rejean’s testimony and less to D.’s self-defence. The witness Corinne did not provide more precise information.

She just corroborated the fact that D. went to talk to Kristen and that M. was following him. She had a selective memory, only reporting the facts concerning her friends M. and D. as victims, and, in the end, she said she could not see clearly. [ 26 ] After analyzing the testimonies, the Court is not convinced of their guilt beyond a reasonable doubt.

A careful consideration of all the evidence (there were many contradictions in the testimonies of the Crown’s witnesses, and in the stated motivations of the victims) leaves the Court with a reasonable doubt about the commission of the offences by the accused. [ 27 ] CONSEQUENTLY, THE COURT: [ 28 ] ACQUITS Kristen Katapatuk on the two counts and ACQUITS Nathan McLeod and Rejean McLeod of the charges. __________________________________ DENYSE LEDUC, J.C.Q.

Mtre. Audrey-Anne Veillette-Dion Attorney for the plaintiff Mtre . Yan Massé Mtre. Ratha Heang Attorneys for the accused Dates of hearing: March 14 and 15, 2013