Her Majesty the Queen - v. -, 2012 SKPC 102

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 102 Date: October 3, 2012 Information: 44660613 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Kyle Robert Bodnarchuk Appearing: Tom Macnab For the Crown Leslie Sullivan For the Accused JUDGMENT P.S. KOLENICK , J BACKGROUND [ 1 ] The accused is charged that on or about the 2 nd day of April 2011, at or near Saskatoon, Saskatchewan he committed an assault on the complainant which caused bodily harm to him contrary to s. 267 (

b) of the Criminal Code .

[ 2 ] This matter had allegedly occurred at Tequila’s, a local nightclub, on the dance floor in the midst of a busy evening of activities, not long before closing time, in the early hours. [ 3 ] The complainant had suffered a broken jaw from a single blow, which the accused had struck. The Crown alleges that in so doing he had committed an unlawful application of force. The accused confirmed he had struck the complainant, however he claimed it had occurred in the course of self-defence.

In that regard at the time he had an honest, reasonable but mistaken belief that the alleged application of force by him was necessary to preserve his physical safety from the apparent aggression by the complainant. [ 4 ] Therefore the following issue has arisen for consideration: Is the evidence for the Crown sufficiently credible to prove beyond a reasonable doubt that the accused had not engaged in self-defence? CROWN WITNESSES Constable Raymond Robertson [ 5 ] Constable Robertson of the Saskatoon Police Service was dispatched at roughly 2:00 a.m. to the Tequila Bar regarding an alleged assault.

An ambulance had been called for the complainant and he was being attended to by the medical personnel. The complainant had jaw and teeth issues. He was quite emotional. [ 6 ] The officer estimated that he spent roughly twenty to twenty-five minutes in contact with the complainant and it was not apparent he was intoxicated. [ 7 ] In cross-examination the officer indicated that there were no signs the complainant had been drinking, not even an odour. Sean Zdrill [ 8 ] Mr. Zdrill had been at the bar with his sister and girlfriend. He had known the complainant previously for roughly three years.

They were both at the bar that night drinking and socializing with other people. [ 9 ] At roughly 1:00 a.m., Mr. Zdrill was leaning against a back railing in the bar. The complainant was dancing roughly six or seven feet away and in his line of sight. It was not apparent there had been any prior interaction between the complainant and the accused and they were dancing roughly two feet apart. Despite that, the accused pushed the complainant to the floor with a two handed shove. When the complainant got up from the floor he immediately got punched a single blow to the face and went down again onto the floor.

The accused had wound up and struck the complainant a full blow. [ 10 ] He confirmed as well that the complainant was in a good mood prior to this matter. Likewise Mr. Zdrill himself was not expecting the shove or the punch. In his view, the complainant would have blown over .08, but he himself had only two drinks because

he was driving. It was also his impression that the accused and his friends appeared to be gloating and smirking after this alleged matter. [ 11 ] In cross-examination Mr. Zdrill confirmed his location at the time on a floor diagram which was prepared by the accused. He agreed also that dancers at Tequila’s can push each other on a crowded dance floor, as occurred then. As well, although there were people between him and the parties at the time, he was able to see what had allegedly occurred between them.

Further, they did come within one to one and one-half feet of each other, which he agreed was fairly close but had no knowledge of whether there had been any verbal exchange between them. Alyssa Zdrill [ 12 ] Ms. Zdrill, age 24, is the sister of Sean Zdrill and was present with him and his girlfriend at the time. As she was watching the dancers she became aware of the complainant doing a funny dance move with his hands, about which she told the others in her group. There were apparently others on the dance floor making funny moves for which she was watching and the complainant’s was the latest.

Prior to that she was not aware of any interaction between the complainant and the accused. [ 13 ] Suddenly she saw the complainant fall really quickly to the floor and get up. Thereafter he stumbled backward again, but she could not see what happened to him thereafter. The music was loud and she could not hear if anything was said. Prior to that, the complainant appeared to be happy. As well, she herself had been drinking and could feel its effects. [ 14 ] In cross-examination Ms. Zdrill confirmed her spot on the diagram which the accused had prepared for these purposes.

She agreed also that sometimes at Tequila’s they do end up dancing shoulder to shoulder but she had seen it busier. Shawn Symchyck [ 15 ] Mr. Symchyck, age 23, had known the complainant for three or four years and regarded him as a close friend. He was roughly ten feet away from the complainant observing him dance from a couch on which he was leaning. He was dancing goofy and having a good time. He was flailing his arms, being funny, and was happy. [ 16 ] Mr. Symchyck observed that the complainant got into the accused’s face. The accused got mad and gestured with his fingers in a poking motion at his own eyes.

The complainant appeared to be confused, but kept on dancing. Thereafter, the accused pushed the complainant with two hands to the floor. The push was a surprise. When the complainant got to his feet again, the accused punched him a single blow to the face. The blow was a complete surprise, and the complainant was off balance. He had not been aggressive with the accused prior to that. [ 17 ] He also indicated here that he himself had three or four drinks and would not have driven. The complainant appeared to be normal regarding his alcohol consumption. [ 18 ] In cross-examination, once again Mr.

Symchyck was asked for his location on the diagram which the accused had prepared. As well, he confirmed attending at Tequila’s before and that dancing shoulder to shoulder can occur. On this occasion, the parties had been dancing apart from each other but the complainant moved into the accused’s personal space. The area was fairly crowded. They had been two or three feet apart, but then the complainant got into the accused’s personal space, which he himself agreed might not have been appreciated by the accused as it occurred. The complainant had stepped back a half step, but continued to dance in the same area.

He got pushed to the floor by the accused and stood up, perhaps in embarrassment from being pushed down. He got punched after that. [ 19 ] In re-examination it was confirmed that the complainant had not been in the accused’s face, just too close for the accused’s

comfort. Brent Gudelot - The Complainant [ 20 ] The complainant, age 24, confirmed he had been at Tequila’s nightclub for the first time and had arrived at roughly 11:00 or 11:30 p.m. He was the designated driver and was there with some friends to socialize and dance. He was there most of the night sitting at a table and dancing the odd dance. [ 21 ] Near the end of the evening, after dancing, he was going to go outside when he encountered the accused for the first time. He came within one and one-half or two feet of the accused.

There had been no prior physical contact or interaction between them. [ 22 ] At that time, however the accused had pushed the complainant back hard enough that he fell over on his back. The complainant was very surprised because it came out of nowhere. Thereafter the complainant went to stand up and was part way back on his feet. The accused punched the complainant an extremely hard single blow to his face, which shattered his jaw and loosened some teeth. As a result of that blow, he fell over again but was not sure if he was knocked over once or twice.

The complainant called 911 on his cell phone. [ 23 ] The complainant had no expectation of being punched and was just in the process of standing up from being pushed. He went to the hospital that night and also to an oral surgeon as part of the complainant’s significant injuries which had occurred. [ 24 ] Regardless, the complainant indicated that he had been in a good mood and that he is not violent by nature. He only had three drinks that night and felt okay from his alcohol consumption. [ 25 ] In cross-examination Mr. Gudelot advised that from the punch to his jaw everything after that was pretty much a blur.

Before the blow, he had been dancing. The dancing there was random both on the dance floor and at the table. The whole club is the dance floor. [ 26 ] Initially the complainant thought a blow had occurred because of mistaken identity. Regardless, the complainant had not come any closer than one and a half feet before being punched down. He did not think he had been too close but agreed that he may have been in the accused’s space. As well, the complainant may have been confused and embarrassed by being pushed down.

In that regard it is possible that the complainant may have made some nature of hand motion with his body while trying to stand up. Memory can be affected by the blow he had suffered, and the passage of time. He does not believe he was dancing in front of the accused intentionally but they may have gotten in each other’s way. Dean Steeg [ 27 ] Mr. Steeg was the head of security at the time. At 2:00 a.m. they were getting ready to close. The complainant approached him and said he had been suckered punched. Thereafter Mr. Steeg spoke to the accused who said he had done nothing wrong.

He appeared to be aloof and not caring. [ 28 ] In the process of escorting the accused out of the premises he was hit in the face twice by the accused. They were strong blows. Regardless the accused did not seem to be drunk but was an angry young man. [ 29 ] In cross-examination Mr. Steeg disputed any suggestion that the accused had conducted himself as someone who had been unjustly accused and should not have been the one to be evicted. As well, he had not been the one who had injured the accused in this

contact, but could not speak for the bouncers who had assisted in evicting the accused from the premises. DEFENCE EVIDENCE Kyle Bodnarchuk - The Accused [ 30 ] The accused was shown Exhibit D-1 which he had prepared and made some entries on it. In general he is 25 years old and had been at Tequila’s with many friends, including one Warren Rebeyka. They had reserved the VIP Lounge for an event. He was familiar with the layout of the bar having been there on previous occasions and that it was a place where customers went to dance.

He had arrived at roughly 11:30 p.m., departing before closing at approximately 1:30 a.m. He had consumed five to seven drinks before matters allegedly occurred. [ 31 ] Warren Rebeyka and the accused had been socializing in the same general area of the bar. The accused was aware of some girls at one of the tables and moved toward that general area, accompanied by Warren. The accused was dancing and after five or ten minutes became aware of the complainant dancing for the first time. He had not met the complainant previously.

He was doing a silly, flagrant dance bobbing up and down, moving his hands around the accused’s face. He moved into the accused’s face, getting as close as six inches and shifting back eighteen inches. It was as if he was taunting the accused even though they had never met. [ 32 ] After roughly ten or fifteen seconds of this activity by the complainant, the accused asked what he was doing and to get out of there. The complainant just smiled. Therefore the accused said “beat it” and made a hand gesture to have him back off. Apparently that had made the complainant mad.

He pushed at the accused and the accused pushed him back. That did not deter the complainant, who moved toward the accused. In order to defend himself, the accused pushed the complainant with two open hands on his chest. As a result of that push, the complainant went down to the floor. He rolled over, got up and came at the accused with his hands and fists. He looked angry and upset as he headed at the accused. [ 33 ] In order to defend himself, the accused struck the complainant a single blow. It was a defensive act, because the accused thought he was being attacked.

He had stood his ground not stepping at the complainant in any way. After the blow had been struck, the complainant disappeared into the crowd. He did not know the complainant had been injured. [ 34 ] After the accused had pushed the complainant back in their initial encounter he had fallen back roughly 12 feet. Before getting up and coming back at the accused he appeared very embarrassed and angry.

The accused confirmed as well that he is six feet and a hundred and fifty-five pounds. [ 35 ] In cross-examination the accused confirmed he had seven drinks the whole night, including some free ones he had at home before they went to the bar but was not completely inebriated by his consumption. He had only struck the complainant one single blow and had been very badly beaten by the bouncer. [ 36 ] Even though this was a bar where people do silly dances, he felt threatened by the actions of the complainant getting into his face, as a stranger, and refusing to back off when told.

He had told the complainant to beat it and made a warning gesture with his hand. Still the complainant had approached him and pushed the accused backwards with his hands. The complainant stopped dancing and looked mad. Therefore, he had pushed the complainant with enough force to get him back. He agreed that while this was ongoing, he had not been backed into a corner and could have moved. [ 37 ] The complainant had been holding both fists in a boxing stance, even if that had not been observed by other witnesses.

As well he had not sucker punched the complainant despite he had moved within one inch of the accused’s face when he had pushed the complainant back. The complainant had not spoken the whole time. [ 38 ] They may have been drinking at the accused’s place prior to the bar, but that had gone from his memory. It was quite some time ago. His first contact with the police was two or three weeks after this alleged matter.

[ 39 ] He had not been asked to leave by the bouncer otherwise he might have complied with that request. He was quite beat up and dazed from the actions of the bouncers. [ 40 ] In respect to his contact with the complainant, he just reacted to the complainant’s actions. He had punched the complainant to avoid getting punched in the face himself. He had no way to escape. He had to punch him. It was a reaction. [ 41 ] Afterward he had discussed what had allegedly happened with his friend Warren and they agreed on what had occurred.

It became an issue for discussion between them two or three weeks after the fact when the police had made contact. Warren Rebeyka [ 42 ] Mr. Rebeyka, age 25, confirmed he is a good friend of the accused and had been with him at Tequila’s. As a group they may have had drinks at a friend’s place before departing but he was not sure who that was. They arrived at Tequila’s between 11:00 p.m. and midnight and it was fairly busy. Both the accused and himself had been drinking.

They were having a good time but nothing out of the ordinary. [ 43 ] When he first became aware of the complainant and his dancing he was roughly ten feet from where the accused and the complainant were located. He had not watched what the complainant was doing but somebody was dancing in the accused’s face. He was too close to where the accused was dancing. He was close enough for body contact. The accused made a motion to get out of his face and told him to beat it. Despite that, the complainant had first pushed the accused. The accused pushed back with two hands.

The complainant fell to the floor, two or three feet away. He got up and started stepping toward the accused like he was going to be violent. He had one arm back and one arm in front as he approached, the accused hit him a blow which he believe struck the complainant in the face. Thereafter the complainant was tended to by his friends. The bouncers escorted him and the accused out of the premises. [ 44 ] In cross-examination he advised there had been some drinking before they went to the bar and the accused likely had some.

He agreed to perhaps being intoxicated at the bar because he had a few drinks at it. [ 45 ] He also agreed that the two of them discussed what allegedly occurred once it became apparent the accused would be charged and may have told the accused what he was going to say. [ 46 ] At the material time he was aware of the complainant dancing strangely and had invaded the accused’s personal space. Despite that the complainant did not look intimidating. The accused was strong and athletic compared to the complainant’s slender build and was no threat to the accused as he approached.

As well, the accused could look after himself and did not need any assistance from his friend. It all happened very fast, just one or two minutes. There was no reason to believe there would be a problem. He did not know the complainant had been hurt. [ 47 ] At the time, however, the accused had told the complainant to beat it and the complainant had pushed the accused first. While he could not recall details the complainant had made an aggressive motion at the accused. Thereafter, the accused had pushed the complainant who went to the ground.

He stood there with his hands at his side and did not appear to be a threat to the complainant. However, the complainant got up from the ground and moved toward him as if to strike the accused. The accused struck the complainant instead to save himself. The complainant had only been two or three feet away after he had been pushed to the ground. He got up and went toward the accused. He made a motion like he would do something to the accused. That caused the accused to strike a single blow at the complainant. Mr. Rebeyka had not seen where it had landed, but assumed it had been in the head.

The accused had not wound up his fist to strike the complainant. ANALYSIS

Is the evidence for the Crown sufficiently credible to prove beyond a reasonable doubt that the accused had not engaged in self-defence? [48] My thanks for the legal brief which the Defence had filed. It was greatly appreciated. I note that s. 267 of the Criminal Codeprovides in part as follows: 267. Every one who, in committing an assault . . .

b) causes bodily harm to the complainant, is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten yearsor an offence punishable on

summary conviction and liable to imprisonment for a term not exceeding eighteen months. [49] In the legal brief filed by the Defence, reference is made to a case of mine, R. v. Walker (T.F.) (2001), (SKPC), 202 Sask. R. 247 which referred to the general principles in issue, as follows, commencing at para. 20: [20] In regard to self-defence, the Criminal Code includes the following provisions: 34. (

a) Self-defence against unprovoked assault - Every one who is unlawfully assaulted without having provoked the assault isjustified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than isnecessary to enable him to defend himself. . . .

(2) Extent of justification - Every one who is unlawfully assaulted and who causes death or grievous bodily harm in repelling theassault is justified if (

a) he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originallymade or with which the assailant pursues his purposes; and (

b) he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm. 35. Self-defence in case of aggression - Every one who has without justification assaulted another but did not commence the assault withintent to cause death or grievous bodily harm, or has without justification provoked an assault on himself by another, may justify the useof force subsequent to the assault if (

a) he uses the force (

i) under reasonable apprehension of death or grievous bodily harm from the violence of the person whom he has assaulted or provoked,and (ii) in the belief, on reasonable grounds, that it is necessary in order to preserve himself from death or grievous bodily harm; (

b) he did not, at any time before the necessity of preserving himself from death or grievous bodily harm arose, endeavour to cause deathor grievous bodily harm; and (

c) he declined further conflict and quitted or retreated from it as far as it was feasible to do so before the necessity of preserving himselffrom death or grievous bodily harm arose. ... 37.

(1) Preventing assault - Every one is justified in using force to defend himself or any one under his protection from assault, if heuses no more force than is necessary to prevent the assault or the repetition of it.

(2) Extent of justification - Nothing in this

section shall be deemed to justify the wilful infliction of any hurt or mischief that isexcessive, having regard to the nature of the assault that the force used was intended to prevent. [21] As a preliminary matter, it should be noted that in R. v. Jobidon, (SCC), [1991] 7 C.R. (4th) 233, the Supreme Court

of Canada concluded that, as a matter of public policy, the assault provisions of the Criminal Code vitiates consent between adultsintentionally to apply force causing serious bodily harm to each other in the course of a fist fight or a brawl (p. 273).

As such, it is of norelevance herein that either or both of the parties hereto may have consented to fight, in light of the serious bodily harm which resultedfrom their conflict. [50] As noted, in general the burden is on the Crown to prove the constituent elements of the offence beyond a reasonable doubtwith credible evidence, and the accused is presumed innocent until proven guilty. In assessing credibility, the Court is guided by theprinciples restated in R. v. McKenzie (P.N.) (1996), (SK CA), 141 Sask. R. 221 (Sask. C.A.) (from R. v.

Rose (A.)(1992), (BC CA), 20 B.C.A.C. 7 (B.C.C.A.)), para. 4: First, if you believe the accused, obviously you must acquit; Secondly, if after a careful consideration of all of the evidence, you are unable to decide whom to believe, you must acquit; Thirdly, if you do not believe the evidence of the accused but you are left in reasonable doubt by it, you must acquit; Fourthly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidencewhich you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [51] The determination of credibility does not involve the Court opting for one version of events or the other.

Rather, the Crownmust prove that its evidence is credible, and there is no onus on the accused whatsoever in that respect. Even if the Court prefers theevidence of the Crown, it must still consider whether the evidence for the Defence raises a reasonable doubt. Therefore, credibility ofthe material witnesses needs to be considered, in that context. (Please note also another judgment of mine on the issue of mistaken self-defence: R. v. D’Amore (2000), (SK PC), 196 Sask. R. 89, Sask. Prov.

Ct.) [52] I note as well that s. 34 to 42 of the Criminal Code have been amended with the amendment having received Royal Assent onJune 28, 2012. However, they were not in effect on the date of this alleged matter, on or about April 2, 2011. Therefore, the CriminalCode provisions as they existed at that time will be applied to the within analysis, rather than the new provisions. CONCLUSION Evidence for the Crown [53] In assessing the evidence on that basis this Court has great sympathy for the physical injury and trauma the complainant hadsuffered at the material time.

Not surprisingly, one of the effects from his encounter with the accused as stated is that everything afterthe punch was pretty much a blur. As such, his ability to provide reliable details as to what occurred in his encounter with the accusedmay have been seriously affected. Despite his good intentions as a witness, the Court cannot count on his ability to recall and relatematerial particulars with adequate reliability for these purposes.

While there is no onus on the Defence herein, he is unable to refute itssubmission that he had been the aggressor, rather than it being the accused. [54] Generally, as well these were not easy circumstances for any of the witnesses to testify about, Crown or Defence. Thesituation involved a very brief traumatic, emotional encounter, occurring suddenly with whatever noise and lighting the bar may havehad going at the time. As well, some of the witnesses had been drinking.

Also one can assume that memories do tend to fade with thepassage of time. [55] In the absence of more confirmatory evidence from the complainant, evidence from the other Crown witnesses is insufficientto establish that he had not initiated the aggressive conduct to which the accused was required to react, in self-defence. It is not enoughfor those witnesses to offer evidence of the accused’s apparently assaultive behaviour against the complainant if the complainant cannotanswer the issue of self-defence in a reliable way.

Witnesses for the Defence [ 56 ] That is not to say, however, that there are not also issues and concerns created by the Defence witnesses. They too had been drinking and were under the influence of alcohol to some extent. As matters unfolded in the ensuing weeks they had an opportunity to discuss events and confirm with each other their impression of what had happened. Indeed there were some differences between their testimony as to how the complainant had conducted himself on the issue of self-defence.

However, they were able to confirm that he had acted in such a manner that the accused reasonably concluded there was a need to strike the complainant a single blow in self- defence even though he was honestly mistaken, as the situation turned out. Further, in regard to their evidence, they both stood up reasonably well in careful, thorough cross-examination. [ 57 ] Reference is made to s. 37 of the Criminal Code in the legal brief of the Defence. Certainly it may be there are other sections of the Criminal Code that might apply.

In the context of s. 37 of the Criminal Code the evidence for the Crown is not sufficiently credible to prove beyond a reasonable doubt that the accused honestly and reasonably believed he had no alternative but to strike the complainant in self-defence, even though he was mistaken. He was justified in using that force to defend himself and used no more force than was necessary to prevent the assault or its repetition. He had not engaged in the wilful infliction of hurt or mischief that was excessive having regard to the nature of the assault that force was intended to prevent.

As such, the accused is not guilty of the allegation of assault causing bodily harm, contrary to s. 267 (

b) of the Criminal Code . ____________________ P.S. Kolenick, J