Her Majesty the Queen - v. -, 2011 SKPC 175

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 175 Date: November 9, 2011 Information: 37252609 Location: Moose Jaw, Saskatchewan _____________________________________________________________________________ Between: Her Majesty the Queen - and - Duane Paul Spilchuk Appearing: Mr. Rob Parker For the Crown Mr. Foster Weisgerber For the Accused DECISION M.T. GORDON , J [ 1 ] Duane Paul Spilchuk is charged that on or about the 3 rd day of May 2011, at or near Moose Jaw, Saskatchewan, did, in committing an assault on Shauna Spilchuk, use a weapon, namely, a syringe, contrary to

section 267 (

a) of the Criminal Code . [ 2 ] The accused and complainant are ex-spouses. They have two children who spend time with both parents. The Court was advised that there was a Queen’s Bench trial with respect to the children on September 12, 2011.

[ 3 ] However, the matter before this Court concerned an incident which is alleged to have occurred May 3, 2011, immediately after an exchange of the children by the parents. [ 4 ] The Crown’s case relies mainly on the evidence of Shauna Spilchuk, the accused’s ex-wife, who says that Mr. Spilchuk stabbed her in the back with a syringe. A police officer and a young man testified and, the Crown argues, corroborate the complainant’s evidence. [ 5 ] The Defence case relies on the evidence of Mr. Spilchuk, denying the allegation. In addition, Mr.

Spilchuk’s current wife, and mother-in-law testified and corroborated his evidence. Crown Submissions [ 6 ] The Crown submitted that it has proved its case against the accused beyond a reasonable doubt. It is not desirable or proper for the Court to focus on the lack of motive or evidence on certain points. The Crown submits that the Court should accept the evidence of the victim Shauna Spilchuk, that the accused stabbed her in the back with a syringe. The accused, according to Ms. Spilchuk, had asked Ms. Spilchuk, his ex-wife, to stay for a few minutes to discuss some matter.

The Crown argues that there are significant areas of corroboration. [ 7 ] Cst. Watt was dispatched to 116 - 3 rd Avenue N.W. on May 3, 2011. He was advised a woman had been stuck with a syringe by her husband. [ 8 ] The officer attended at 8:24 p.m. and met the complainant Shauna Spilchuk, who appeared pale and weak. She advised that she had been stabbed on the right side of her back by her bra fastening, by her ex-husband. The officer observed a small circular hole in her shirt and a red mark that appeared like blood. [ 9 ] Cst. Watt is a paramedic as well as a police officer.

He made some inquiries as to where the injury occurred and noted he thought most people would not be able to reach the area described by Shauna Spilchuk themselves. He seized the needle cap, and compared and found the injury in the complainant’s back consistent with that size of needle. [ 10 ] The Crown suggested Caleb Wilson’s evidence provides corroboration in several areas. Young Mr. Wilson sees two vans, one being parked in the spot the complainant and accused described in their evidence. It is between 8:00 or 9:00 p.m., between light and dark. Mr. Wilson sees a woman running around.

He describes a larger man in a green top running away. [ 11 ] The Crown noted that the two women called by the Defence were very assertive and very definitive about many details they offered in examination-in-chief. On cross-examination by the Crown, these witnesses were not so sure and had to change their time lines. For example, on cross-examination Ms.

Jean stated it was 7:30 p.m. that the children were to be picked up, but this is inconsistent with the evidence from the other witnesses. [ 12 ] In closing, the Crown reminded the Court it did not need to prove motive and it would not be proper to focus on investigative work the police did not do. The evidence of the complainant should be accepted and it is sufficient to prove the offence beyond a reasonable doubt. Defence Submissions [ 13 ] The Defence submits that the complainant’s version of events just does not pass “the air of reality test”. He submits it is just too far-fetched to be believable.

In addition, the independent Crown witnesses do not corroborate the complainant’s story. The young man testified that he saw a man in a green hoodie and dark jeans running across the space in the back of the church. This was observed

after he saw Ms. Spilchuk being assisted by a woman. [14] Ms. Spilchuk was clear in her evidence that after she escaped, the accused lingered in front of the van and then sauntereddown the street. She saw Mr. Spilchuk walk away before she got help. Ms. Spilchuk described the accused as wearing grey sweat pantsand a black jacket. This is the clothing described by the Defence witness and the accused. [15] The officer looked in the van where Ms. Spilchuk said this incident occurred. He saw a grey needle cap, one and a half incheslong, sixteen gauge, that would fit a one-sixteenth diameter needle. Cst.

Watt has also been an advanced care paramedic since 1994 andthis needle cap is consistent with needles he has used. [16] Defence also pointed out that the complainant testified that she and the accused were in the van for about twenty minutes, butonly spoke for a couple of minutes. The complainant had to say this to make her story and the time frames work. [17] The Defence argues that Mr. Spilchuk, a trucker, has no ready access to a syringe. The complainant, given her job, wouldhave access. [18] There are other inconsistencies.

In her statement she said she pretended to be unconscious so she could get away from theaccused. In her evidence she says she felt groggy. She claims the accused stood in front of the van while she ran from house to houseand then walked away. [19] The Defence agreed that the Crown did not need to prove motive and that motive could be considered in assessing credibility. There was no motive on Mr. Spilchuk’s part. There is a family law trial involving the custody of the two children in the near future.

Thesuggestion is that the complainant fabricated this entire story with the hope that the accused would be convicted and thus hamper hisposition in the civil trial. Analysis [20] The case involves assessing credibility and both counsel referred to the analysis commonly referred to as the W.(D.) analysis. [21] In R. v. B.G.S., 2010 SKCA 24, the appellant appealed his conviction of sexual assault arguing that the trial judge failed toapply the appropriate standard of proof; and failed to give adequate reasons for his decision. Mr.

Justice Ottenbreit, writing for theCourt, at paragraph nine: The trial judge’s references in his decision respect: (

i) whether the complainant’s or the Appellant’s evidence is to be “preferred”; (ii)whether the complainant’s or the Appellant’s evidence is “most” credible; or (iii) whether accepting the complainant’s evidence “over”the denial of guilt, are in this case problematic, because they speak of a direct evidentiary contest between the complainant and theAppellant, which must be avoided in the context of criminal proceedings. The standard of proof must not be reduced to a choice betweenthe complainant and the accused. It is not manifest that the reasoning approach set forth in W.(D.) has been applied in this case.

Wetherefore conclude that the learned trial judge was in error in his approach to the issue of credibility and reasonable doubt in this case. Because of our conclusion on the first ground of appeal, it is not necessary to address the adequacy of reasons issue. [22] This case involves a material conflict in the evidence and the requirement to apply the test or analysis as enunciated in R. v.McKenzie (1996), 141 Sask. R. 22 (C.A.), respecting the doctrine of reasonable doubt as it applies to the issue. In R. v.

Donardo, 2008SCC 24 , 2008 S.C.C. 24, at paragraph 23, Justice Charron recognized that the formula set out in W.(D.) and adopted in R. v.McKenzie, supra, is not written in stone, on the credibility and reliability of the witnesses:

The majority rightly stated that there is nothing sacrosanct about the formula set out in W.(D.). Indeed, as Chamberland J.A. himselfacknowledged in his dissenting reasons, the assessment of credibility will not always lend itself to the adoption of the three distinct stepssuggested in W.(D.); it will depend on the context (para. 112). What matters is that the substance of the W.(D.) instruction be respected.

In a case that turns on credibility, such as this one, the trial judge must direct his or her mind to the decisive question of whether theaccused’s evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt. Put differently, thetrial judge must consider whether the evidence as a whole establishes the accused’s guilt beyond a reasonable doubt.

In my view, thesubstantive concerns with the trial judge’s decision in this case can better be dealt with under the rubric of the sufficiency of his reasonsfor judgment. [23] It is trite law to say a trial judge may accept all, part, or none of the evidence of any witness. [24] In the within case, after the exchange of the children, there are two very different accounts of what occurred. Each side takesthe position that the evidence of his witness is credible and should be accepted. [25] The burden to prove the essential elements of the charge is always on the Crown.

The accused is presumed innocent untilproven guilty. The application of the W.(D.) principles, as they are sometimes referred to, does not involve the Court opting for oneversion of events over another. [26] In Canadian Criminal Evidence, Second Edition, by P.R. McWilliams, Q.C., at page 652, the author states that whenassessing the evidence: Even so, the ultimate question is not which circle was telling the truth but rather, on all the evidence, whether the case has been provedbeyond a reasonable doubt.

If the evidence of the defence witnesses might reasonably be true (and if true affords a defence) then thecharge has not been proved: R. v. Nykiforuk (1946), (SK CA), 86 C.C.C. 151 (Sask. C.A.). [27] When I consider the evidence as a whole, I conclude that the evidence of Duane Spilchuk is preferable. Even though it isreasonable to assume that the accused is interested in securing his acquittal, the presumption of innocence does not permit a conclusionthat an accused will lie where that accused chooses to testify.

I observed Duane Spilchuk and found him to give straightforwardresponses to questions posed by his counsel and by the Crown on cross-examination. He described the events earlier in the day and thecommunication between himself and Shauna Spilchuk. It appears that both Shauna and Duane were running late. However, theymutually agreed to meet at the Catholic church as was their usual practice. He describes the two children moving from thecomplainant’s van to his van. Shauna and Tammy, Duane’s current wife, exchanged bags and the communication binders, which tookless than two minutes. Mr.

Spilchuk testified that he remained in the van and had no discussion with Shauna. He says he was wearing ablack work shirt and grey sweat pants. [28] Mr. Spilchuk, Tammy and the children, arrived at their home, which is close by, about 7:45 p.m. By 8:00 p.m. the childrenwere in their pajamas, ready for bed. Mr. Spilchuk and Tammy and Tammy’s mother settled down to watch a new television show. Thepolice arrived about 8:45 p.m. [29] Mr.

Spilchuk’s evidence is corroborated by his current wife Tammy Butle Spilchuk, who was driving the van when theypicked up the children, and Sandra Jean, Tammy’s mother. [30] Both women confirmed the critical point that the accused did not remain behind to talk to the complainant. Tammy testifiedthat there had been various exchanges and communications earlier in the day between Duane and Shauna. They agreed to meet at thechurch at 7:30 p.m. All four of them, being Duane, Tammy and the two children, went home together before 8:00 p.m. Tammy andDuane put the children to bed and settled down to watch television.

The police arrived at around 8:45 p.m. [31] Ms. Jean was visiting and staying at the home of Duane and Tammy at 1206 Henleaze Avenue. She testified that Duane andTammy were only gone a short time when they returned with the children. She also confirmed that Duane and Tammy put the childrento bed and then the adults sat down to watch a new television show by 8:00 p.m. Ms. Jean’s testimony regarding the time the police

came is not the same as the accused’s. She was sure the television program was still on and that the police came before 8:30 p.m. [ 32 ] In my view this is of little consequence. She had no reason to be keeping careful track of the time of the arrival. The arrival of the police was unexpected and upsetting. She testified that the police officer spoke to her rather abruptly and told her to “shut up and sit down”. [ 33 ] I accept Ms. Jean’s evidence that the accused and her daughter left together to pick up the children and returned together. I cannot believe that Ms.

Jean would mislead this Court for the sake of the accused. [ 34 ] The evidence of the young man, Caleb Wilson, corroborates the evidence of the complainant with respect to the fact that the complainant was running down the street and knocking at various doors to ask for assistance. Mr. Wilson says he saw a person in black jeans running across the church yard. The complainant said the accused was wearing grey sweat pants, walking down the street. This is not corroboration. [ 35 ] The complainant’s evidence about what occurred in the van in my view is very contrived and does not have an air of reality.

The complainant is the one who could have access to syringes and is familiar with syringes given her job. The syringe was not found. Her testimony was that she felt groggy and therefore her statement later to the police is not complete. It then must be viewed in light of her evidence that she pretended to be unconscious so she could escape the accused. It is to be noted that she said the accused just stood in front of the van while she ran from house to house and then he walked away.

Caleb Wilson testified that he saw a man running across the park when the complainant was running from house to house. [ 36 ] The complainant’s evidence is corroborated only on peripheral matters. The issue is whether this Court is satisfied beyond a reasonable doubt that the accused assaulted the complainant by jabbing her with a syringe. [ 37 ] The onus remains on the Crown throughout. There is no onus on the accused to prove his innocence. [ 38 ] Looking at the whole of the evidence, I believe the accused that nothing took place. Accordingly, the Crown has failed to prove his guilt beyond a reasonable doubt.

Therefore, I find the accused not guilty. Dated at Moose Jaw, Saskatchewan, this 9 th day of November, 2011. ______________________________________________ M.T. Gordon, J