Her Majesty the Queen - v. -, 2013 SKPC 111

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 111 Date: June 24, 2013 Information: 44663312 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Brenden McKay Peters Appearing: Paul Goldstein For the Crown Don Mullord For the Accused JUDGMENT M.L. GRAY , J Background [ 1 ] Mr.

Peters was charged on November 14, 2012 with wounding Valene Katcheech thereby committing an aggravated assault, contrary to s. 268(1) of the Criminal Code and also with violating a Probation Order made on September 12, 2011 by failing to keep the peace and be of good behaviour contrary to s. 733.1(1) of the Criminal Code . A copy of the Probation Order was filed and includes the condition that the accused keep the peace and be of good behaviour. Thus, conviction on this count depends upon a finding of guilt on the aggravated assault.

[ 2 ] All of the Crown evidence formed part of a voir dire on an application to have out of court statements made by the complainant tendered for the truth of their contents. No evidence was tendered by the defence. At the conclusion of the voir dire , the Court admitted the out of court statements made by Ms. Katcheech with reasons to follow. All of the Crown evidence on the voir dire was applied to the trial proper; no further evidence was called by the Crown nor did the accused elect to call any evidence on the trial.

Evidence [ 3 ] The issue in this case centres on the complainant who provided to the Court evidence that varied from her previous out of court statements to the police. There were five such statements, the first of which was a 9-1-1 call very shortly after she was assaulted. During that call, she reported that someone dragged her out of bed and beat her. She stated that the door was not locked, that her attacker must have come to the wrong place and that she was almost killed.

It is clear from the tape, which was filed as an exhibit, that she was crying and hysterical. [ 4 ] Constable Kowalenko and his partner were dispatched to the complainant’s apartment at approximately 1:00 a.m. on November 14, 2012. They went to apartment 201 where they found the complainant who was bleeding from her face; her top lip was split right through to her nose creating a one inch gap in her upper lip. She identified herself as Valene Katcheech and the constable noted that she was hysterical and crying but he did not note any level of intoxication or any smell of beverage alcohol. Ms.

Katcheech did not have any difficulty standing or walking, even while carrying her baby down the stairs. In the kitchen, the officer saw that a chair had been tipped over and there was fresh blood on the floor. There was heat coming from the stove and a hot frying pan. He also saw a case of empty Kokanee beer cans and more empties in the sink. There was music coming from the computer in the bedroom. When he turned off the computer, he noted that there was also blood on a pillow. [ 5 ] En route to the hospital, in the ambulance, he noted that Ms.

Katcheech’s left eye was swelling shut, her left cheek and bottom lip were swollen and she complained of a sore back. He did not smell alcohol in that closed environment. [ 6 ] At the hospital, Ms. Katcheech told him that she was asleep with her baby when she was pulled out of bed by her feet, dragged to the hall and beaten. She knew that the suspect wore a checkered jacket and she heard a voice but she did not recognize it. She did not name the suspect and Constable Kowalenko did not ask if she knew her attacker. In cross-examination, the officer acknowledged that Ms.

Katcheech described her assailant as wearing a checkered jacket but he did not recall her saying that her attacker had short, black hair. The complainant initially told him that the assailant wore a hat, but later said it was a hood. She said that she did not know the suspect and did not recognize his voice. The complainant initially reported that there were two men involved in the attack.

She said that she had been at the Blue Diamond Bar with her aunt earlier in the evening. [ 7 ] The next statement was reduced to writing by Constable Martin while the complainant was in the hospital and within one hour of the 9-1-1 call being placed. He said that he wrote her exact words to the best of his ability, as she spoke quickly. He included the questions he asked as well as her answers. Her speech was slurred, but he believed that was due to the injury to her mouth.

Although the complainant consented to provide a statement without hesitation, she declined to read or sign it, saying that she would do so in the morning. [ 8 ] That statement was marked as P-1 on the voir dire . It says in part: “ I came home and I went to bed. I told my auntie to go home and all of a sudden they dragged me to the hallway. I don’t know if they hit me with something...”. When asked what the person looked like, she replied, “he had a checkered jacket on, short hair, native guy, 20's, my height 5'9".

He had a hat.” She was asked if it could be her ex-boyfriend to which she stated, “ I didn’t see his face. He didn’t say anything. He dragged me to the door. There was two male guys. I didn’t know anybody.” When asked about the men’s clothing in her closet she said they belonged to the accused, and added “I don’t know why he would do that to me.” She also told the officer that she had been at two different bars that evening with her aunt and consumed seven beers; she sobered up on the walk home so told her aunt to leave. Later she stated, “Brennan (sic) wouldn’t do this to me would he?

I think it was him though that’s the only person I would know. He’s the only one with a key to the house. The door wasn’t locked and two guys came into the house.” When asked about the clothing worn by the assailants, she said “One had small checkered jacket with hood, 5'9" or 5’8” heard voice of other guy. Jacket was different colours, dark green or blue or something. Dark pants.” [ 9 ] The fourth statement was taken at the hospital about 1:00 p.m. on November 14, 2012. Constable Broadbent went to St.

Paul’s Hospital to meet with a woman in the Intensive Care Unit who told nurses that she wanted to speak to the police. When he arrived on the ward, he was directed to the complainant. Her mother and sister were with her. Constable Broadbent made the statement, “you

have more information for me” to which the complainant replied, “it was Brenden Peters.” She also said that the accused has a grey, blue and green lumberjack-style checkered jacket that is dirty and faded. She went on to say that she had been at her apartment with Amanda Thomas and her child and went to bed once Amanda left. She was awakened by someone dragging her from her bed. It was dark and she could not see. She was punched 10-15 times, dragged to the hallway where she was again struck repeatedly. She was kicked in the back and ribs.

She felt a hard, blunt object hit her in the face, back, back of her head and arms. She heard another male voice but was uncertain if he was involved in the assault. She saw a jacket that she recognized as belonging to the accused. After the assault, she was left bleeding on the floor and crawled to the phone to call the police who arrived within a few minutes. [ 10 ] She stated that the accused had the key to the apartment and she had tried to get it back from him a couple of weeks earlier. The door was locked when she went to bed. She said that the accused had stayed at the apartment the previous night.

The complainant and her family expressed concern that the accused still had a key to the apartment and that Ms. Katcheech might be at risk. As a result, the officer went to the apartment with her sister to arrange to have the locks changed.

There, he noted a mop and an apparent attempt to clean up the blood. [ 11 ] The officer made notes and left a report, but did not reduce this statement to writing for the complainant to sign, nor did he caution the complainant that it was an offence to make a false statement. [ 12 ] A fifth statement by the complainant was made to Constable Pringle on November 15, 2012, also at the hospital. She had obvious injuries to her face but was alert, coherent and had no trouble communicating. The officer introduced himself and his purpose for being there.

The complainant agreed to speak to him and he advised that he would be tape-recording their conversation. The following is a

summary of that recorded statement which was filed as exhibit P-4 on the voir dire . [ 13 ] Ms. Katcheech stated that she only remembered being dragged from her bed and down the hallway toward the door to the apartment. She was struck in the face and hit repeatedly; she thought that she blacked out for awhile but recalled trying to run for the phone. She ran to the kitchen but was chased, thrown to the floor and choked. She was repeatedly struck in the face and she believed that a knife or some other object was used. She finally got to the phone but her assailant had run out of the apartment by then.

In addition to the injury to her lip, which required 15 stitches, her back was broken in two places, and her nose and eye socket were broken. When asked if she knew her attacker, she indicated that it was “Brenden Peters”, with whom she lived on and off and the father of her newborn child. He had been at her place that evening but left for about an hour with her uncle. He came back to the apartment about 11:00 p.m., they had a drink together and shortly after they began to argue. The accused again left the apartment and she went to bed with her infant.

Her next recollection was hearing the door to the apartment open even though she believed that she had secured the deadbolt before going to bed. The accused had a key to the apartment. She was dragged out of bed by both feet while her assailant swore at her and called her names. She believed that she was punched in the face 10 to 15 times. In the kitchen, she was grabbed by her neck and thrown to the floor and punched a number of times. She also recalled being punched while she was in the bathroom. She was able to grab the phone and dial 9-1-1 at which time the accused ran out of the apartment.

When asked if she had any doubt that it was the accused who assaulted her, she replied, “it was him.” [ 14 ] Constable Pringle did not obtain a sworn statement or warn Ms. Katcheech about the consequences of making a false statement; he did tell her at the outset that it was important that she provide an accurate version of events, but never asked whether she told him the truth. [ 15 ] The next statement given by the complainant was her sworn testimony, in court.

Upon application by the Crown to cross- examine this witness pursuant to s. 9(2) of the Canada Evidence Act , I ruled that the above outlined statements provided by Ms. Katcheech were given voluntarily. Further, I found that there were inconsistencies between her evidence and those statements in the following areas: the identity of the assailant, the sequence of events leading to the assault, the number and identity of the people present at the apartment and the details of the assault. The Crown was given leave to cross-examine her. [ 16 ] The following comprises a

summary of the complainant’s evidence, including cross-examination. Ms. Katcheech has known the accused for approximately one-and-a-half years; he is the father of her child who was born on October 22, 2012. They lived as a couple for over a year and in November 2012, they both lived at 201 - 403 Avenue P South, although the accused also stayed at other places. They shared one key to that apartment. [ 17 ] On November 14, 2012, she was drinking with the accused at the Blue Diamond Bar; he left sometime between 10:00 and

[ 17 ] On November 14, 2012, she was drinking with the accused at the Blue Diamond Bar; he left sometime between 10:00 and 11:00 o’clock. Later, she took three people to her apartment, one of whom was Aaron Bear. The other two were girls whose names she did not know. They got to the apartment about midnight and continued to drink. She had five beers and was quite intoxicated. The other three individuals with her were drinking hard liquor. At first, the group was having fun but then they tried to rob her. She was attempting to evict them when they started taking her things.

One individual held her down in the kitchen and living room area while the other two assaulted her. She did not recall much of the assault because she was dazed from being hit in the head. They left with her money. Shortly afterward, the accused arrived but she told him to leave because she knew there was an outstanding warrant for his arrest. [ 18 ] She said that the assault lasted about 15 minutes and was motivated by her debt to Aaron Bear for drugs. She described Aaron Bear as having short hair, skinny, tall and dressed like a gangster. He was wearing black pants.

She has known him since elementary school and he bought her a drink at the bar. She owed him money for drugs from years ago but she had not seen him since that time. She described one girl as wearing a purple shirt and the other a black shirt. Both were wearing jeans. [ 19 ] After the beating, the accused came in and told her to call an ambulance. He asked her if he should take the baby but she told him no.

She volunteered that she blamed the accused for “everything because he cheated on me.” She said that she lied to the police but could not remember what she told them because she was really intoxicated; she had no recollection of getting to the ambulance. She agreed that she did not want the accused arrested; they are still together and she believes that he is a good father to their child. [ 20 ] She was not certain whether she saw a police officer the next morning.

When asked if it was possible that she wanted to talk to the police, she responded “kind of, but was really afraid.” She agreed that a police officer came with a tape-recorder but she did not recall what she said to him. She admitted that she told the officer that Brenden did it and that she was telling the truth when she told the officer that she did not know why he would. She agreed that statement was totally different from her testimony. [ 21 ] In cross-examination by the Crown, Ms.

Katcheech said she “wasn’t in her right mind” when she spoke to the police and could barely remember telling them on three occasions that the accused was responsible. She agreed that she did not want to get the accused in trouble. She denied that she requested the police to attend the hospital on November 15 to speak to her and maintained that the accused had nothing to do with the assault.

When asked why she told an officer that she was 100% sure that it was the accused, she replied, “revenge.” When asked for what it was she wanted revenge, she said, “a lot of things.” When confronted with the audiotaped statement taken that day, she said that she did not “know what to say about that” in reference to her statement that she was 100% sure that it was the accused who assaulted her.

When asked why she did not refuse to speak to the police, she said she was under pressure by the presence of her family. [ 22 ] In further cross-examination by the Crown, she said that she was dazed when her assailants ran out and that the accused came in, held her and calmed her down. She maintained that she was calm when she made the call to the police. The 9-1-1 recording was played in court. She identified her own voice, said that she was drunk and agreed that she was hysterical while on the telephone.

She maintained, however, that she had been calm when the accused was present and became hysterical again during the call. [ 23 ] She agreed that she never told the police that she had been drinking with Aaron Bear and two others. She denied telling the police that the accused had the key to her apartment. She also denied that she told medical staff at St. Paul’s Hospital that she was assaulted by her ex-boyfriend. In reviewing the medical records which were filed with the Court, I note that there is no reference to the cause of injury in either the ambulance records or in the admission notes at the hospital.

A requisition that Ms. Katcheech be seen for pain control does say, “23 year old female...was out last night having some drinks, came home and was dragged out of bed and assaulted by recent ex-boyfriend.” That request was noted to have been made at 3:05 p.m. on November 14, 2012, subsequent to her statements to Constable Kowalenko and Constable Martin. [ 24 ] Ms. Katcheech agreed that she never named anyone, other than the accused, being responsible for the assault prior to testifying in court. [ 25 ] Counsel for the accused also cross-examined the complainant.

She agreed that the worst injury was to her lip, that her broken nose did not require treatment and that her back was not particularly painful as she was able to wash walls when she returned home. She agreed that she did not identify or name anyone in the 9-1-1 call but did mention the checkered jacket. When it was suggested that she named the accused because of that jacket, she replied, “...things just flashing because I was hit in the head so many times...”.

[26] When the complainant steadfastly refused to adopt any of her previous statements, the Crown asked to have the hearsayevidence of the complainant considered by the Court for the truth of their contents. The onus is on the party seeking to tender thestatement and is on a balance of probabilities: R. v. Smith (1992), (SCC), 2 S.C.R. 915 (S.C.C.). The tests for theadmissibility of such statements are based on necessity and reliability. There is no doubt that Ms. Katcheech held hostage evidencewhich could not be obtained in any other fashion: see R. v. Mousseau (2002), ABQB 311 at para. 11.

Counsel for the accused veryfairly conceded that the test for necessity had been met. [27] The Court was then left to consider the question of the reliability of those statements. The test is a threshold one and thequestion is whether there are sufficient indicia of reliability in the statements to warrant having them weighed for the truth of theircontents. There are three basic concerns about the reliability of hearsay evidence: (

i) it is not subject to contemporaneous cross-examination; (ii) it is not given under oath; and (iii) the trier of fact does not have an opportunity to observe the declarant in the makingof the statement. See: R. v. U.(F.J.), (SCC), [1995] 3 S.C.R. 764 and R. v. B.(K.G.) [K.G.B.],1 S.C.R. 740. [28] The Supreme Court of Canada, in R. v. Smith (supra), said, at paragraph 33: The criterion of "reliability" -- or, in Wigmore's terminology, the circumstantial guarantee of trustworthiness -- is a function of thecircumstances under which the statement in question was made.

If a statement sought to be adduced by way of hearsay evidence is madeunder circumstances which substantially negate the possibility that the declarant was untruthful or mistaken, the hearsay evidence maybe said to be "reliable", i.e., a circumstantial guarantee of trustworthiness is established. [29] Indeed, in R. v. Khan, (SCC), [1990] 2 S.C.R. 531 and R. v. Smith (supra), oral statements made to ordinarycitizens were admitted as an exception to the hearsay rule, the Court having found circumstantial guarantees of trustworthiness in thesurrounding circumstances. The Supreme Court of Canada in R. v.

Khelawon (2006), S.C.C. 57, held that in determining reliability,regard should be had for the presence or absence of other supporting or contradictory evidence. A number of cases have considered whatcircumstances might provide alternative guarantees of trustworthiness in the absence of a sworn videotaped statement orcontemporaneous cross-examination. These include the presence of striking similarities between statements: R. v. Khelawon (supra), R.v. U.(F.J.) (supra) and the context in which a statement was made: R. v.

Blackman (supra). [30] In this case, I found that some supporting evidence existed for the statements made by the complainant implicating theaccused. From the outset, she described her assailant wearing a particular kind of jacket; the accused was wearing a jacket which fit thatdescription when he was arrested. She provided a description of the suspect including height, weight, race, and hair colour which alsogenerally fits the accused. Once in hospital, she named the accused as responsible.

I accept that she was concerned that the accusedmight have a key to the apartment and that she asked an officer to assist in having the locks changed. Further, DNA analysis revealedthat her blood was found on the centre seam closure of the jacket worn by the accused at the time of his arrest. Further, thecomplainant’s blood was found on one of the accused’s left fingers: see P-3 Laboratory Report.

Finally, the complainant was availablefor cross-examination on her previous statements. [31] The presence of all of the above noted factors satisfied the Court, on a balance of probabilities, that the threshold test ofreliability had been met. There is some likelihood that her statements identifying the accused are truthful and deserve to be weighed withthe whole of the evidence. [32] The remaining question is whether the evidence establishes, beyond a reasonable doubt, that the accused was responsible foran aggravated assault by wounding Valene Katcheech.

There is no dispute, and I am satisfied beyond a reasonable doubt, that Ms.Katcheech was assaulted while she was in her apartment in Saskatoon, Saskatchewan on November 14, 2012. Nor is there any doubtthat she sustained injuries which meet the definition of wounding.

As there was no defence evidence, the only question is whether theCrown evidence establishes, beyond a reasonable doubt, that the accused committed that assault, or, in other words, are the out of courtstatements made by the complainant ultimately reliable. [33] I have carefully reviewed and considered all of the evidence, including the evidence of witnesses not summarised in thisdecision. This review raises a number of concerns. [34] First, it is quite clear that Ms. Katcheech was caught in several outright lies, some of which were about inconsequentialmatters.

For example, she denied that she asked for the police to return to speak to her in the hospital but I have no hesitation inaccepting the evidence of Constable Broadbent on this point. Similarly, she denied any request to have her apartment lock changed;

again, I accept the evidence of Constable Broadbent. She denied being hysterical during her 9-1-1 call, and when confronted with a recording of it, explained that she had been calmed by the accused but became upset again while on the phone. This explanation defies all logic and belief. [ 35 ] In considering whether the Court can be satisfied about the truth of her statements implicating the accused, I note that there was no mention of the accused in her 9-1-1 call. If ever a person is truthful, it is more apt to be in the throes of an emergency, before there is opportunity to reflect and fabricate.

In that initial report she says, more than once, that she believes the assailant was in the wrong place. At the hospital, she maintained to Constable Martin that she did not know either of the two males who came into her apartment. She does not mention the accused until Constable Martin asks about the men’s clothing in her apartment. Even then, her response is that she does not know why the accused would do such a thing to her. When she is asked what she and the accused had argued about on an earlier occasion, she says “Brennan (sic) wouldn’t do this to me would he?

I think it was him though that’s the only person I would know. He’s the only one with a key to the house. The door wasn’t locked and two guys came into the house.” [ 36 ] It is not until the next morning, after she had an opportunity to speak to her mother and sister, who she says “pressured” her, does she definitively name the accused as being responsible for the attack on her.

The inference is that she came to a conclusion with the assistance of her family connecting the dots, that is, the physical description that she gave the night before, including the checkered jacket worn by her attacker, as well as her previous history of violence with the accused. [ 37 ] Although the complainant’s blood appears on the jacket which was seized by Sergeant Johnson, I note that it is a small amount on the front of the jacket and comprises the minor component of the sample taken. Similarly, the minor component of the sample taken from a cuticle and nail of the accused also matches the complainant.

The major component of all the other samples taken from the accused and his clothing come from the same unknown male. The presence of the complainant’s blood on the accused and his jacket is very suspicious and provides some support for her later allegation that the accused committed the assault. However, the evidence of Sergeant Johnson is clear that the jacket is old and well-worn.

Further, the DNA tests offer no information as to the age of the sample. [ 38 ] It is clear that the complainant is in a difficult and somewhat untenable position, but the fact remains that she has given several different versions of the events of the evening in question, and the identity of her assailant. She quite blatantly has told untruths, thereby compromising her credibility beyond rehabilitation. Given this state of affairs, the Court cannot be satisfied beyond a reasonable doubt of the guilt of the accused.

On a balance of probabilities, it is likely that the accused was responsible, but it is simply dangerous to convict in the face of the number of conflicting stories given by Ms. Katcheech. [ 39 ] Accordingly the accused is found not guilty of both counts. _________________________ M.L. Gray, J