His Majesty the King - v. -, 2023 SKPC 10

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2023 SKPC 10 Date: January 24, 2023 Information: 991133979 Location: Prince Albert _____________________________________________________________________________ Between: His Majesty the King - and - Merlin Kahmahkotayo Jr. Ms. Maureen M. Longworth For the Crown Mr. Dale N. Blenner-Hassett For the Accused DECISION S.D. SCHIEFNER, J INTRODUCTION [ 1 ] Several years ago, Merlin Kahmahkotayo Jr. was in a common-law relationship with Melissa Holliday and they have four children. After they separated, the children resided with their mother. On July 18, 2020, Mr.

Kahmahkotayo stopped by Melissa’s residence to deliver a present for one of his children on her birthday. However, Richard Holliday, Melissa’s father, stopped Mr. Kahmahkotayo as he entered the backyard and asked him to leave before he could see his daughter. While there is some dispute as to what happened next, there is no dispute that Mr. Holliday sustained significant trauma to his head during an altercation with the accused. Mr. Kahmahkotayo is now charged with assaulting Mr. Holliday – one count of aggravated assault and one count of assault with a weapon. Mr. Kahmahkotayo says he acted in self-defense.

[ 2 ] I find that Mr. Kahmahkotayo’s claim of self-defense must fail. Mr. Holliday was not capable of being a serious physical threat to him and his response to the actual threat he was under was not reasonable. Simply put, the totality of the force applied by Mr. Kahmahkotayo was wholly disproportionate to actual physical threat (if any) that he faced. Furthermore, I am satisfied that Mr. Holliday sustained serious bodily harm as a direct result of Mr. Kahmahkotayo’s actions.

His injuries were serious and persisted for a significant period of time, which is sufficient to satisfy the physical elements of an aggravated assault. [ 3 ] Finally, it is not necessary that Mr. Kahmahkotayo intended to wound, main or disfigure Mr. Holliday. The mens rea requirement for aggravated assault is objective foresight of bodily harm and I am satisfied that a reasonable person would have realized that the force Mr. Kahmahkotayo used would subject Mr. Holliday to the risk of serious bodily harm. [ 4 ] As a result of these determinations, I find Mr. Kahmahkotayo guilty of aggravated assault.

THE EVIDENCE [ 5 ] A trial was conducted on October 11, 2022 and December 15, 2022. The Crown called three witnesses – the complainant, Richard Holliday; his daughter, Melissa Holliday; and Constable Darcy Burns, a member of the Prince Albert Police Service. Merlin Kahmahkotayo Jr. testified in his own defense. In these reasons for decision, I refer to certain individuals at times by their first names. I do so not out of disrespect - I do so to avoid confusion in references and because that is how they referred to each other in their testimony.

Crown Evidence : The Family Background : [ 6 ] Merlin Kahmahkotayo Jr. [Merlin] and Melissa Holliday [Melissa] were in a common-law relationship for approximately 10 years. Four children were born from their relationship; Hunter (DOB: Mar 15, 2012); Lillybell (DOB: April 9, 2013); Marylynne (DOB: July 18, 2014); and Mekiwyn (DOB: August 4, 2015). Melissa and Merlin separated about five years ago. In July of 2020, Melissa and the children were living at 881 – 15 th Street West, Prince Albert, Saskatchewan. At that time, Mr. Kahmahkotayo was living at Sturgeon Lake First Nation.

Richard Holliday is Melissa’s father. Although he is very active in Melissa’s life, as well as the lives of his grandchildren, he does not live with them. He has his own residence in Prince Albert. Richard Holliday’s Evidence : [ 7 ] The complainant was 60 years old at the time of the incident. It was his granddaughter’s birthday, and he was at Melissa’s house. His grandchildren were present, together with two other children. Mr. Holliday and Melissa were in the backyard, sitting on the back deck. Some, not all, of the children were playing in the backyard. Mr.

Holliday testified that he saw a vehicle drive down the back alley and stop. Mr. Kahmahkotayo got out and walked toward Melisa’s backyard. Mr. Holliday understood that Merlin was not supposed to come over unannounced and he was not supposed to be at Melissa’s place that day. Mr. Holliday understood that Merlin was supposed to ask before he came over to see the children. [ 8 ] Mr. Holliday testified that, when Merlin came in the backyard, he was carrying a bag that appeared to have a present or something in it. Mr.

Holliday said he asked Melissa and she told him that Merlin did not have permission to come to the house that day. As a result, Mr. Holliday walked up to Merlin, put his arms out at his sides, and blocked Merlin from walking into the yard. Mr. Holliday said he told Merlin he did not have permission to come to be there that day. Merlin responded by telling Mr. Holliday that he just wanted to give a present to his daughter. Mr. Holliday told Merlin that he was not allowed to come to Melissa’s house unannounced. [ 9 ] Mr.

Holliday continued to hold his arms out as his side – blocking Merlin’s ability to walk further into the yard. Mr. Holliday then told Merlin to leave and reminded him that he did not live there anymore. Mr. Holliday also told Merlin something about the Sheriff’s department looking for Merlin to serve him with papers or something like that. At this point, the two men are face to face, with Mr. Kahmahkotayo wanting to come in the yard and give a present to his daughter and with Mr. Holliday blocking him from doing so and telling him to leave. Mr. Holliday testified that Merlin told him to “step back” – which Mr.

Holliday said he did. Mr. Holliday said he thought that Merlin was about to leave.

[ 10 ] Mr. Holliday testified that, instead of leaving, Merlin turned around and swung the gift bag at him. He said the bag struck him on his right forearm and the right side of his head. Mr. Holliday said that Merlin swung the bag at him “like a baseball bat”. He then fell to the ground. Mr. Holliday told Court that he thought he might have been “knocked out” by the force of the impact. He said the next thing he knew, he was lying face down on the ground. Mr. Holliday testified that he tried to get up but, but when he did so, Merlin kicked him in the face. Mr.

Holliday testified that Merlin also kicked him in the middle of the back between the shoulder blades. Mr. Holliday denied pushing Mr. Kaymahkotayo, throwing anything at him, or doing anything to provoke a fight with him. [ 11 ] Mr. Holliday testified that, after Merlin left, he had blood running from his nose and mouth. He went to the hospital in Prince Albert. In emergency, medical staff did X-rays and an MRI. Mr. Holliday’s nose was broken. Medical records indicate Mr. Holliday experienced a “nasal bone fracture” and a “sinus wall fracture, as well as bruising and a laceration on the bridge of the nose”. Mr.

Holliday’s eye socket was also broken. Medical records indicate fractures of the right orbital rim. Mr. Holliday was referred to a plastic surgeon at the Saint Paul’s hospital in Saskatoon for follow up for his fractured nose. Mr. Holliday was also referred to an eye specialist. Finally, Mr. Holliday had a laceration inside his upper lip that required sutures. In the days following the incident, Mr. Holliday had black spots in his right eye that were treated with laser eye surgery – six treatments in total. Mr.

Holliday testified that it took approximately 5 ½ weeks for him to recover except for his nose, which remained crooked. [ 12 ] In cross-examination, Mr. Holliday acknowledged that there were no court orders preventing Mr. Kahmahkotayo from going to Ms. Holliday’s resident. Mr. Holliday acknowledged that Mr. Kahmahkotayo was not violent or threatening when he came in the backyard and that he told Mr. Holliday that he just wanted to give his daughter a birthday present. Finally, Mr. Holliday acknowledged that he told Mr.

Kahmahkotayo that he could not give his daughter a birthday present and that he was not welcome. Melissa Holliday’s Evidence [ 13 ] Ms. Holliday (Melissa) testified that July 18, 2020 was a birthday for one of her daughters. As a present, Melissa took her daughter out to the mall in the morning to get her ears pierced. While at the mall, Melissa sent a text message (or possibly a message on Facebook Messenger) to Mr.

Kahmahkotayo telling him that she was getting their daughter’s ears pierced and that she planned to have a birthday party for their daughter on Monday – Monday because that was the day that Melissa was to receive her July payment under the Canada Child Benefit Program. Melissa testified that she sent this message to Merlin in the morning of July 18, 2020 while they were still at the mall. [ 14 ] Melissa testified that Merlin responded to her message and said that he had a present to give the girl and that he wanted to bring it to Melissa’s house. Ms.

Holliday testified that she told Merlin not to come by during the day because her father was already at the house, and that it would cause a confrontation. Ms. Holliday told Court that she knew there could be a problem if Merlin came by when her father was there, and she did not want a confrontation on their daughter’s birthday. Ms. Holliday told Court that her father was “upset” with Merlin. Ms. Holliday explained to Court that she wanted Mr. Kahmahkotayo to see his children, but just not when her father was there. Ms.

Holliday told Court that, not only was Merlin not invited that day, but he specifically knew he was not supposed to come to her house because she told him that morning. [ 15 ] Later that day, Ms. Holliday, her father and her children were all at her house. Also present were two other children. Ms. Holliday testified that she was on the back deck, when she saw Merlin walk into her yard. He was carrying a birthday present. Ms. Holliday said that, when she saw Mr. Kahmahkotayo coming into her yard, she told him that he should not be there, and that he should leave.

Merlin responded to her by saying that he just wanted to see his daughter and give her a present. Melissa testified that she repeated to Merlin that he should not be there. Ms. Holliday testified that, when she was having this conversation with Mr. Kahmahkotayo, her father walked over to Merlin and “got up right in his face”. Her father was also telling Merlin to leave. [ 16 ] Ms. Holiday told Court that Merlin pushed her father. She said that she was not surprised that Merlin pushed her father because Mr. Holliday was very close to Merlin’s face and that he probably deserved a push.

However, things escalated from there. Ms. Holliday testified that she saw Merlin swing the bag containing the birthday present at her father, and that it was a big swing – up, around and down. She said that it was hard to see what was going on because she was behind her father and his back was toward her. Ms. Holliday testified that she thought that Merlin had hit her father because she saw her father fall down. She told Court that initially her father was not face down on the ground. Ms. Holliday said that, at this point, her father was about halfway to the ground. Ms. Holliday testified that Mr.

Kahmahkotayo then started kicking her father. She did not say where. [ 17 ] Ms. Holiday testified that, at this point, she grabbed the children who were in the backyard and took them in the house. She told Court that she did not want the children to see any violence – that she did not want them to see what was happening to her father. Ms. Holliday testified that she turned her back on the two men and went in the house with the children. She told Court that, when she turned

back around, her father was lying face down on the ground, and she saw Merlin kick him in the back. Ms. Holliday told Court that she chased Merlin away from her father, and he ran out of the yard. Ms. Holliday testified that she followed Merlin out of the yard and that she kicked the car that he got into as it drove away. [ 18 ] Ms. Holliday testified that, after Mr. Kahmahkotayo left, her father came in the house and was bleeding from his mouth and his nose. She said that the children were very upset when they saw Mr. Holliday bleeding. Ms.

Holliday said that she found the birthday present Merlin had brought lying on the ground in the backyard. It was a gift bag, wrapped in fancy paper and it contained a colouring book, a dress, and a number of little toys. [ 19 ] In cross-examination, Ms. Holliday denied that her father yelled at Merlin but did acknowledge that Mr. Holliday “got up in Merlin’s face”. Defence Evidence – Mr. Kahmahkotayo’s Testimony : [ 20 ] Merlin Kahmahkotayo is 40 years of age.

He testified that the day before the incident, he purchased a dress, crayons, a doll, and a number of other small gifts for his daughter and placed these gifts in a decorative paper gift bag. He said that, on July 18, 2020, he sent a message to Melissa in the morning about bringing the gift over to her house – but he says she did not answer him. Mr. Kahmahkotayo denied receiving any messages from Melissa on July 18, 2020, including any message telling him not to go to her place. Mr. Kahmahkotayo testified that he and his mother drove in from Sturgeon Lake First Nation.

They went to Melissa’s place, and they parked in the back alley. Mr. Kahmahkotayo said that, when he walked into her backyard, he saw Melissa and her father were sitting on the back deck. There were children playing in the backyard – not his kids but other kids from the neighbourhood. [ 21 ] Mr. Kahmahkotayo said that, as he walked into the backyard, he heard Mr. Holliday say to Melissa “are you gonna tell him or should I tell him?”. Mr. Holliday then got up, walked over to Mr. Kahmahkotayo, stood directly in front of him, and told him that “you are not allowed to be here”. Mr.

Kahmahkotayo said he “just wanted to see his baby girl”. He showed Mr. Holliday the present. At which point, Mr. Holliday told Mr. Kahmahkotayo that “you can’t be here” and then he said something about there being a restraining order. Mr. Kahmahkotayo told Mr. Holliday “I just want to see my baby and then I’ll go”. Mr. Kahmahkotayo told Court that “it was supposed to be a good day” – “that he did not go there (to Melissa’s place) to start anything”. [ 22 ] Mr. Kahmahkotayo testified that, at this point, he and Mr. Holliday were face to face. He saw Melissa go in the house. When she did, Mr.

Kahmahkotayo thought she was going to get his daughter. However, he said Mr. Holliday became aggressive toward him – that he was yelling and swearing at him - before Melissa came back out with his daughter. Mr. Kahmahkotayo said he pushed his gift toward Mr. Holliday and said “then you give it to her and I’ll go”. Mr. Kahmahkotayo testified that Mr. Holliday’s response was to push or throw the gift back to him and (according to Mr. Kahmahkotayo) Mr. Holliday then began preparing to take a swing at him. Mr. Kahmahkotayo said that he knew that Mr.

Holliday was going to take a swing at him because he started pulling his arm back. [ 23 ] Mr. Kahmahkotayo testified that he instinctively responded to Mr. Holliday’s attempted swing at him – or in response to his belief that Mr. Holliday was going to swing at him - by punching Mr. Holliday in the face. He told Court it was just one punch – it was a closed fist punch to Mr. Holliday’s face. He said that Mr. Holliday then fell to the ground. Mr. Kahmahkotayo denied kicking Mr. Holliday in the back or anywhere else. However, he admitted that, when Mr.

Holliday tried to get up, he pushed him back down by placing his foot on Mr. Holliday’s bum. Mr. Kahmahkotayo said that it all happened very fast - so his foot might have made contact with his back, but he thought he placed his foot on Mr. Holliday’s bum. In either event, Mr. Kahmahkotayo denied kicking Mr. Holliday – only placing his foot on his back/bum to stop him from getting back up again. Mr. Kahmahkotayo testified that he prevented Mr. Holliday from getting back up because he wanted to stop him from coming after him. [ 24 ] Mr. Kahmahkotayo testified that it all ended when Melissa came out of the house.

He said that, when Melissa came out of the house, she said “don’t hit my dad” and chased after him. Mr. Kahmahkotayo said he responded by running out the back gate. When he left, Mr. Holliday was lying on the ground. [ 25 ] In cross-examination, Mr. Kahmahkotayo stated that, around the time of the incident, he would see his children from time to time. When he did so, he would come to Melissa’s house to see them. He acknowledged that he usually came to the house when Melissa’s father was not present. Mr.

Kahmahkotayo denied that he had received any messages from Melissa prior to him arriving at her place on July 18, 2020, including any messages telling him not to come to her place that day. Mr. Kahmahkotayo did, however, acknowledge that he received a message from Melissa stating that she planned to take their daughter to get her ears pierced, but he stated that he received that message on the day before her birthday, not on July 18, 2020. Mr. Kahmahkotayo’s answer on this latter point was somewhat equivocal, but he said, to the best of his memory, he did not think Melissa sent him any messages on July 18, 2020.

[26] In cross-examination, Mr. Kahmahkotayo acknowledged that there were children present when he and Mr. Holliday were faceto face in the backyard, but that they went in the house when Melissa went in the house. Mr. Kahmahkotayo also acknowledged that,when Melissa came out of the house, their daughter did not come with her – when she came out of the house, Melissa was alone. Mr.Kahmahkotayo denied that Melissa told him that he should leave. To the contrary, he said that Melissa said she would go in the houseand get their daughter. Mr.

Kahmahkotayo acknowledged that he was not invited to Melissa’s house that day and that he did not leavewhen Mr. Holliday asked him to. [27] In cross-examination, Mr. Kahmahkotayo provided a fuller explanation of why he thought Mr. Holliday was about to take aswing at him. He said that Mr. Holliday was “right in my face”, that he was “in my bubble”, and he was “yelling and swearing at me”. Indoing so, his testimony changed. In direct examination, Mr. Kahmahkotayo said that Mr. Holliday was about to swing at him and/or thathe was preparing to swing at him.

However, in response to questions from the Crown prosecutor as to why he did not just leave, Mr.Kahmahkotayo said that Mr. Holliday actually swung at him, but that he missed him because Mr. Kahmahkotayo stepped back. He alsoacknowledged that, when it appeared that Mr. Holliday was going to take a swing at him, he could have just walked away – but he didnot. When asked why he did not just leave, Mr. Kahmahkotayo said that he wanted to see his daughter.

He told Court that it was not Mr.Holliday’s place to tell him to leave Melissa’s house or to tell him that he could not see his children. [28] In cross-examination, Mr. Kahmahkotayo said that he was surprised that Mr. Holliday received such serious injuries from hispunch, including the fractured eye socket, the fractured nasal bone, and the cut in his mouth. While acknowledging that a kick to the facecould have caused the kind of injuries that Mr. Holliday sustained, Mr. Kahmahkotayo denied that he kicked Mr. Holliday in the facewhen he was on the ground. Mr.

Kahmahkotayo repeated his earlier evidence that he only punched Mr. Holliday once and that he did notkick him in the face. While acknowledging that he punched him, Mr. Kahmahkotayo said he did not mean to cause the injuries that Mr.Holliday received. Evaluation of the Evidence and Findings of Fact: [29] Clearly, there is contradiction in the testimony. The complainant and the accused told two different narratives as to whathappened on July 18, 2020. From the testimony, I must decide what evidence I accept and, based on that evidence, I must then decidewhether or not the Crown has proven its case.

It is a fundamental principle of criminal law that the Crown must present evidence to theCourt to establish each element of the offence and that such evidence must provide proof beyond a reasonable doubt. If the Crowncannot discharge this burden, I must acquit the accused. If there is evidence inconsistent with guilt and I accept that evidence, I must alsoacquit. If, after hearing all the evidence, I am left in reasonable doubt by it or I do not know whom to believe, again I must acquit. In acriminal trial, the burden never shifts from the Crown to prove its case and to do so beyond a reasonable doubt.

See: R v W. (D.), (SCC), [1991] 1 SCR 742 at pages 757-58. [30] In evaluating the evidence of the witnesses to determine whether or not I accept that evidence or whether it raises a doubt inmy mind as to the Crown’s case, I can consider a number of factors. These factors include: (

a) the overall likelihood or plausibility ofeach witness’s evidence, (

b) the consistency of that person’s evidence with surrounding events, (

c) the internal consistency of theevidence, and (

d) the demeanor of the witness and the “balance” of his/her evidence. However, I am mindful that I must not simplycompare the testimony of one or another witness, and then choose which version of events I prefer. To do so would be to misapply theburden of proof. For example, it is possible that a trial judge might not fully believe an accused’s version of events, but still be uncertainas to what really happened.

In that situation, there is doubt - the benefit of which must go to the accused, See: R v Nyznik, 2017 ONSC4392, 350 CCC (3d) 335. [31] In this case, I heard contradictory testimony with respect to a number of facts – some of these facts relate to elements of theoffence, and some facts are merely collateral, but are relevant for the purpose of assessing credibility and/or reliability. Credibility isconcerned with a witness’s veracity. It’s about a witness’s honesty – his/her willingness to tell the truth and to do so without bias,amplification or obfuscation.

Reliability on the other hand does not involve a witness’s willingness to tell the truth. It is about a witness’sability to accurately retain, recall and communicate facts to the court. A credible witness’s evidence can be wrong and there are a varietyof reasons why someone may not be able to accurately retain and recall past events. For example, lack of sleep, intoxication, medication,the passage of time, and intervening events can all have an impact on the durability of our memories.

Furthermore, even reliablewitnesses can remember the same event differently, and not all inconsistencies in the evidence signal a reliability or credibility issue. Onthe other hand, sometimes it does. [32] In this case, when I examine the whole of the evidence, I am left with a concern about the reliability of some of Mr.Holliday’s evidence. He experienced a significant trauma to his head to the extent that he believed that he was knocked unconscious.First, in light of the injuries he received, it is entirely possible he was unconscious for a period of time.

Second, his unconsciousness, if ithappened, occurred at a crucial point in time – in the middle of the altercation. For this reason, I am concerned about Mr. Holliday’sability to fully and accurately narrate events after he fell to the ground. As a result, I have given less weight to his evidence (after the

point in time he fell to the ground) unless such evidence has been corroborated by other evidence that I do accept. Additionally, I have concerns about Mr. Kahmahkotayo’s evidence but for a different reason. Mr. Kahmahkotayo’s narration of certain events was improbable and inconsistent with other evidence I find to be credible and reliable. Also, a critical part of his evidence changed while under cross-examination – namely, whether or not Mr. Holliday actually swung a fist at him. This was not a case where Mr. Kahmahkotayo’s memory was refreshed by the Crown.

Rather, his evidence changed in response to probing cross-examination. Simply put, I have concerns with respect to the evidence of both the complainant and the accused – Mr. Holliday for reasons of reliability - Mr. Kahmahkotayo for reasons of credibility. [ 33 ] Fortunately, there was another witness – a witness that I find to be both credible and reliable. When examined in light of all of the evidence, I found Ms. Holliday to be a clear, cogent and compelling witness. Her testimony was logical and plausible. It was internally consistent and consistent with surrounding events. In addition, Ms.

Holliday’s testimony was balanced in that she was critical of both her father and Mr. Kahmahkotayo. The compelling inference from her testimony was that her father was misguided in challenging Merlin in the way he did – by “getting up in his face” – and that he bears some responsibility for what happened that day. Finally, her demeanor was not of someone angry with Mr. Kahmahkotayo, but rather of someone sad that violence had occurred in front of her children. I am left with the compelling inference that Ms. Holliday provided Court with an accurate narration of events, without bias, embellishment or obfuscation.

Did Mr. Kahmahkotayo receive a message from Ms. Holliday on July 18, 2020 telling him not to come to the house that day ? Answer: Yes [ 34 ] Mr. Kahmahkotayo denied that he received any messages from Ms. Holliday on the morning of July 18, 2020. Specifically, he denied receiving a message telling him not to go to Melissa’s house that day. Ms. Holliday testified that she did send such a message, and her testimony was logical and compelling. In fact, it is so compelling that it overwhelmed Mr. Kahmahkotayo’s denial. Ms.

Holliday’s description of her communication was internally logical – she sent a message to Merlin when she was at the mall getting her daughter’s ears pierced. She was informing Merlin about a significant event for their daughter – in fact for any young child – getting her ears pierced. Ms. Holliday told the Court that Mr. Kahmahkotayo said he had a present for their daughter and he wanted to give it to her. Ms. Holliday told him not to come by the house that day because her father was already there, and she was concerned about a confrontation. During this communication, Ms.

Holliday told Merlin she was planning a birthday party for their daughter on Monday. The conversation as described by Ms. Holliday was logical, plausible and entirely consistent with the events that were unfolding at that time. [ 35 ] On the other hand, Mr. Kahmahkotayo described a different conversation with Ms. Holliday – a conversation he said happened the day before. He acknowledged that Melissa told him that she was going to take their daughter to get her ears pierced. However, in this conversation, Mr.

Kahmahkotayo did not mention that he had already bought or was planning to buy a gift for her or that he wanted to give that present to her on her birthday. It is improbable in the extreme that Mr. Kahmahkotayo would not mention his desire to give a gift to his daughter during a conversation with Ms. Holliday about their daughter and her birthday even if that conversation took place the day before her birthday. The compelling inference – in fact the only reasonable inference that can be drawn from the evidence - is that Mr. Kahmahkotayo did receive Ms.

Holliday’s message telling him not to come to her house that day, but that he denied receiving this message because it cast him in an unfavourable light. This fact is not an element of either of the offences for which he was charged, but it is relevant to my assessment of Mr. Kahmahkotayo’s credibility – his willingness to provide an accurate narration of events, without bias, embellishment or obfuscation. Did Ms. Holliday ask Mr. Kahmahkotayo to leave when he first arrived ? Answer: Yes [ 36 ] Mr. Kahmahkotayo denied that Melissa told him to leave when he first came into her yard.

Rather, his testimony was that she did not say anything about his presence. Instead, she went in the house to get his daughter. In my opinion, his evidence is self-serving and implausible in light of the surrounding events. Mr. Kahmahkotayo told Court that Mr. Holliday aggressively confronted him in the yard, that he unkindly told him to leave, and that all this happened in front of Melissa. Mr. Kahmahkotayo would have me believe that, upon seeing this confrontation beginning to occur, Ms. Holliday did not say anything to either her father or him. Rather, according to his testimony, Ms.

Holliday calmly went in the house to get his daughter and the other children just happened to follow her in the house, leaving him and Mr. Holliday alone in the backyard. [ 37 ] In my opinion, Mr. Kahmahkotayo’s denial is wholly overwhelmed by the clear, logical and compelling evidence of Ms. Holliday. She testified that, as soon as she recognized it was Mr. Kahmahkotayo walking into her yard, she told him that he should not be there and that he should probably leave. Ms. Holliday explained to Court that it was not that she did not want Mr.

Kahmahkotayo to come to her house – her concern – the concern she expressed to Merlin earlier in the day – was that she did not want him to come to her house when her father was present because she was afraid of a confrontation between the two of them. [ 38 ] When all the evidence is examined as a whole, I have no doubt that Ms. Holliday told Mr. Kahmahkotayo he should leave as

soon as he arrived at her place on July 18, 2020. Again his fact is not an element of either of the offences for which he was charged, but it is also relevant to my assessment of Mr. Kahmahkotayo’s credibility – his willingness to provide an accurate narration of events, without bias, embellishment or obfuscation. Did Mr. Holliday try to punch Mr. Kahmahkotayo ? Answer: Unlikely [ 39 ] In direct examination, when Mr. Kahmahkotayo first narrated his confrontation with Mr. Holliday in Melissa’s backyard, he did not say that Mr. Holliday swung at him or that he stepped back to avoid being struck by Mr.

Holliday’s fist. Rather, Mr. Kahmahkotayo testified that he believed that Mr. Holliday was about to swing at him because Mr. Holliday was being aggressive toward him, swearing at him, and he began to pull his arm back to swing at him. As I have already noted, Mr. Kahmahkotayo’s evidence changed during cross-examination. In answering questions from the Crown prosecutor about why he did not just walk away from Mr. Holliday if he was being aggressive toward him, Mr. Kahmahkotayo told Court that Mr. Holliday actually did take a swing at him. In this changed narrative, Mr.

Kahmahkotayo said that he stepped back to avoid the swing. [ 40 ] In my opinion, this is not the kind of evidence that could reasonably change. It is improbable in the extreme that, if Mr. Holliday actually swung a fist at Mr. Kahmahkotayo during their confrontation in the yard, he would not say that in Court when originally asked to describe the incident. The fact that Mr. Kahmahkotayo’s evidence on this point changed, undermined his credibility as a witness. Furthermore, while Mr. Holliday was agitated by Mr. Kahmahkotayo’s presence in Melissa’s yard and while he was prepared to physically block Mr.

Kahmahkotayo from entering further into the yard with his body, other than Mr. Kahmahkotayo’s assertion, there is no evidence that Mr. Holliday’s conduct was assaultive in nature. Ms. Holliday specifically denied seeing her father take a swing at Merlin or even attempt to. While it could have happened while her back was turned or when she was in the house with the children, it seems improbable under the circumstances. Until that point in time, while Mr. Holliday was verbally aggressive with Mr. Kahmahkotayo, his actions – his physical conduct – involved blocking Mr.

Kahmahkotayo from coming further into the yard with this body and by getting in his face. While his conduct was provocative, it is improbable that Mr. Holliday tried to punch Mr. Kahmahkotayo. Did Mr. Kahmahkotayo kick Mr. Holliday while he was on the ground ? Answer: Yes [ 41 ] While Mr. Kahmahkotayo denied that he kicked Mr. Holliday while he was on the ground (in the face or anywhere else), Ms. Holliday testified that she saw Merlin kicking her father when she was gathering up the children to take them in the house and that she saw Merlin kick her father one more time when she came back out of the house.

On this point, Ms. Holliday’s evidence was so clear and so compelling, that it wholly overwhelmed Mr. Kahmahkotayo’s denial. While Mr. Holliday said that Merlin kicked him in the face, Ms. Holliday did not see that happen. Simply put, it is possible that Mr. Kahmahkotayo kicked him in the face, and it is equally possible that he did not. Mr. Holliday’s injuries are consistent with being kicked in the face and it is possible that it happened while Ms. Holliday’s back was turned. On the other hand, it is also possible that Mr.

Holliday sustained his injuries when he was punched in the face – if it was a particularly violent punch. ANALYSIS AND CONCLUSIONS [ 42 ] Mr. Kahmahkotayo was very critical of Mr. Holliday. In his counsel’s words, “Mr. Holliday started this whole mess.” He noted that all parties agreed that Mr. Kahmahkotayo was not aggressive when he arrived, and that it would have been obvious that he only wanted to give a present to his daughter on her birthday. Mr. Kahmahkotayo said that Mr. Holliday was the aggressor – that he was aggressive toward him, that he was abusive, and that he swung first. Mr.

Kahmahkotayo acknowledged that he punched Mr. Holliday. However, he said that he only did so in self-defense – in response to Mr. Holliday taking a swing at him. Finally, Mr. Kahmahkotayo told Court that he never intended to cause the extent of injuries that Mr. Holliday suffered – that he responded out of instinct – the need to meet force with force. [ 43 ] The Crown took the position that it had proven its case beyond a reasonable doubt with the combined testimony of Mr.

Holliday and Melissa, including negating the potential application of the defence of self-defence. [ 44 ] Based on the evidence before me, it is clear that all of the basic elements for an assault have been proven by the Crown. However, three issues remain to be determined: 1. Does the defence of self-defence have any application?

2. Has the Crown proven assault with a weapon? 3. Has the Crown proven an aggravated assault? Self-Defence Analysis: [45] The defence of self-defence is now codified in s. 34 of the Criminal Code. While this

section has broad application, the mostcommon circumstance where it applies is where force is used to resist force. For example, a person who is the victim of an unprovokedassault is entitled to use force to defend themselves provided the force used is reasonable and for the purpose of defending themselves. Inadvancing the defence of self-defence, an accused acknowledges the intentional application of force but takes the position that the forcehe/she applied was justified under the circumstances. See: R v Ryan, 2013 SCC 3 , [2013] 1 SCR 14 at para. 26.

I would like tonote that while I refer to an accused “advancing” self-defence, there is no onus on the accused to prove anything. If there is an air ofreality to the accused’s assertion that he/she acted in self-defence, the Crown must negate the application of the defence.

If it does not doso, the accused is entitled to an acquittal. [46] Subsection 34(1) provides that a person is not guilty of an offence (including assault) if three essential elements are present:(1) the accused must have a reasonable belief that force is being used or threatened against them (or another person); (2) the actions ofthe accused must be for the purpose of defending themselves or protecting others from that force; and (3) the actions of the accused,including the degree of force used, must be reasonable in the circumstances. See: R v Pankiw, 2014 SKQB 381 at para 27, 462 Sask R217.

For the trier of fact, the accused’s perception of the threat and their belief that they are defending themselves (or another) is assessedon a subjective basis (from the subject’s perspective). However, the reasonableness of the subject’s response is measured on a modifiedobjective basis (what would a reasonable person – a person with similar characteristics and experiences as the accused - have done inthose circumstances). See: Pankiw at para 27. [47] As I have already noted, Mr. Kahmahkotayo need not prove the application of this defence.

If I find, based on the evidencebefore me, that there is an air of reality to his assertion that he acted in self-defence, then s. 34 applies unless the Crown can provebeyond a reasonable doubt that at least one of the required elements of the defence was not present. See: R v Deegan, 1979 ABCA 198at paras. 57 to 61, 17 AR 187. See R v Hebert, (SCC), [1996] 2 SCR 272 at paragraph 25. See also: R v Chaboyer,2020 SKPC 6 at para 32. [48] In my opinion, this case turns on the “reasonableness” of Mr. Kahmahkotayo’s response to the threat of force.

Subsection34(2) sets forth a fulsome (but non-exhaustive) list of factors that must be considered in determining whether or not

an act committed inself-defence is reasonable in the circumstances. This list includes the following: (

a) the nature of the force or threat; (

b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential useof force; (

c) the person’s role in the incident; (

d) whether any party to the incident used or threatened to use a weapon; (

e) the size, age, gender and physical capabilities of the parties to the incident; (

f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of forceand the nature of that force or threat; (f.1) any history of interaction or communication between the parties to the incident; (

g) the nature and proportionality of the person’s response to the use or threat of force; and (

h) whether the act committed was in response to a use or threat of force that the person knew was lawful. [49] As I have already noted in these Reasons, Mr. Kahmahkotayo did not go to Melissa’s house for a confrontation. He went thereto give a birthday gift to his daughter. Because Mr. Holliday was there and because Melissa did not want a confrontation, she asked Mr.Kahmahkotayo to leave. Unfortunately, the dynamic between the two men escalated into a confrontation - with Mr. Kahmahkotayowanting to give his daughter a gift, with Mr.

Holliday unwilling to let him do so, and with both men set on their respective goals. WhileMelissa told Mr. Kahmahkotayo to leave, the reason she did so was because her father was there. By her own evidence, if her father hadnot been there, she would have permitted Mr. Kahmahkotayo to see his daughter and give her his gift. Whether he knew it or not, Mr.Holliday was the catalyst for the confrontation. His presence frustrated Mr. Kahmahkotayo’s desire to see his daughter on her birthday

and his demeaner toward Mr. Kahmahkotayo unnecessarily inflamed the situation. Nonetheless, the defence of self-defence does not permit force to be used in response to disappointment or the frustrations of dealing with an unapologetic and unreasonable ex-father-in- law. The defence only applied in response to the threat of physical force. [ 50 ] Even if I assume that Mr. Holliday took a swing at him (which I think is unlikely), the nature of the threat of force that Mr. Kahmahkotayo was exposed was not serious. Mr. Holliday was 60 years old at the time of the incident. During his testimony, Mr.

Holliday presented as a frail individual who had not aged well – I would have guessed he was in his 70’s. On the other hand, Mr. Holliday was not frail of words. He spoke his mind with confidence. Mr. Holliday’s conduct toward Mr. Kahmahkotayo on July 18, 2020 was unnecessarily disrespectful, if not insulting. [ 51 ] The problem for Mr. Kahmahkotayo in advancing self-defence is that Mr. Holliday was not capable of being a serious physical threat to him and his response to the actual threat he was under at the time was wholly disproportionate. Simply put, Mr.

Kahmahkotayo’s response to the potential threat was unreasonable under the circumstances. Even if I assume that Mr. Holliday did swing at Mr. Kahmahkotayo (which I find unlikely), by his own admission, Mr. Kahmahkotayo stepped back from it. Mr. Kahmahkotayo had numerous other means available to respond to the potential use of force, including continuing to step back to create separation from Mr. Holliday. However, Mr. Kahmahkotayo’s response to the potential use of force was to punch Mr. Holliday with sufficient force to knock him to the ground, and then to kicked Mr. Holliday while he was on the ground.

Medical records indicate Mr. Holliday experienced a nasal bone fracture and a sinus wall fracture, as well as bruising and a laceration on the bridge of the nose. Mr. Holliday’s eye socket was also broken. Finally, Mr. Holiday had a laceration inside his upper lip that required sutures. These injuries occurred either because of one massive punch or during the subsequent kicks while he was on the ground. Either way, Mr. Kahmahkotayo caused Mr. Holliday’s injuries. [ 52 ] I am satisfied beyond a reasonable doubt that, irrespective of how Mr. Holliday sustained his injuries, the totality of the force applied by Mr.

Kahmahkotayo was wholly disproportionate to the threat he faced. As a result, I am satisfied that the Crown has negated the defence of self-defence. While Mr. Kahmahkotayo’s desire to bring a gift to his daughter on her birthday was reasonable, his actions cannot be justified under s. 34 of the Code . Assault with a Weapon Analysis : [ 53 ] Mr. Kahmahkotayo was charged with assault with a weapon, to wit: a present. This charge arose because Mr. Holliday’s believed that Mr.

Kahmahkotayo struck him with the gift bag he brought for his daughter – he believed it was the present that struck him in the arm and his head, and knocked him to the ground. In support of this belief, Ms. Holliday saw the gift bag swing through the air and strike her father. However, the contents of the gift bag as described by the parties – a dress, colouring book, small toys, etc. – would not have had sufficient mass to cause any of the serious injuries that Mr. Holliday sustained. Simply put, Mr. Kahmahkotayo did not strike Mr. Holliday with a present – he struck Mr. Holliday with his fist.

The gift bag was merely an unintended passenger that came along with Mr. Kahmahkotayo’s punch. Under these circumstances, I am not satisfied – certainly not beyond a reasonable doubt – that the gift bag Mr. Kahmahkotayo brought for his daughter became a weapon during the assault. Rather, it was just another victim in a sad turn of events.

Aggravated Assault Analysis : [ 54 ] In R v Peroz , 2019 SKQB 298 at paras 85 and 86 , Justice Danyliuk summarized both the basic elements of the offence of a common assault, as well as the additional elements necessary for the Crown to provide an aggravated assault: [85] The authorities disclose that the elements comprising the crime of assault, each of which the Crown must prove beyond a reasonable doubt, are as follows: ▪ the identity of the accused; the date, time and place set out in the indictment; ▪ the accused intentionally applied force to the complainant; ▪ the complainant did not consent to the force that the accused intentionally applied; and ▪ the accused knew the complainant did not consent to the force that the accused intentionally applied. [86] In the case of aggravated assault, there are three additional elements:

▪ the assault wounded, maimed or disfigured the complainant, or endangered the life of the complainant; ▪ the accused’s conduct caused the complainant to be wounded, maimed or disfigured, or endangered the complainant’s life; and ▪ a reasonable person would have realized that the accused’s conduct would subject the complainant to the risk of bodily harm. [55] Mr. Holliday was not maimed or disfigured (other than his nose) and his life was not endangered. Rather, the Crown’s theoryis that Mr. Kahmahkotayo committed an aggravated assault because he “wounded” Mr. Holliday.

The British Columbia Court of Appealin R v Pootlass, 2019 BCCA 96 at para 113, 373 CCC (3d) 433 provided the following definition of wound: [113] To briefly conclude, a wound, as the word is used in s. 268(1) of the Code, is a break in the continuity of the whole skin thatconstitutes serious bodily harm. Serious bodily harm is any hurt or injury that interferes in a substantial way with the integrity, health orwell-being of the complainant.

This is a finding of fact, upon the application of the proper legal test. [56] This definition was adopted by the Alberta Court of Appeal in R v Richards, 2020 ABCA 63, 389 CCC (3d) 189, and by mybrother Judge Hinds in R v D.M.R., 2022 SKPC 42. It should be noted that this definition does not require the complainant to sustain thekind of injuries that persist through time. However, the injuries must be serious and must interfere in a substantial way with the integrity,health, and well-being of the complainant. [57] The medical evidence satisfied me beyond a reasonable doubt that Mr.

Holliday sustained serious bodily injury as a result offorce applied to him by Mr. Kahmahkotayo on July 18, 2020. The injuries to Mr. Holliday’s mouth resolved with sutures. The injuries tohis right eye were serious and required laser treatment to resolve. Mr. Holliday reports that his nose remained crooked even after ithealed. All of these injuries required advanced medical intervention. I am satisfied that these injuries were serious, and their cumulativeeffect was to interfere in a substantial way with Mr.

Holliday’s integrity, health and well-being, and they did so for a significant period oftime – approximately six weeks. [58] Finally, as noted by the Court in R v Godin, (SCC), [1994] 2 SCR 484, it is not necessary that Mr.Kahmahkotayo intended to wound, main or disfigure Mr. Holliday. The mens rea requirement for aggravated assault is objectiveforesight of bodily harm and I am satisfied that a reasonable person would have realized that the force Mr. Kahmahkotayo used wouldsubject Mr. Holliday to the risk of serious bodily harm.

CONCLUSION [59] For the foregoing reasons, I find the accused not guilty of assault with a weapon but guilty of aggravated assault. Dated this 24th day of January, 2023, at the City of Prince Albert, in the Province of Saskatchewan. __________________________ S.D. Schiefner, J