Her Majesty the Queen - v. -, 2016 SKPC 55

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 055 Date: April 18, 2016 Information: 37253281 Location: Moose Jaw _____________________________________________________________________________ Between: Her Majesty the Queen - and - Edward John Berg Appearing: Mr. Barrie Stricker For the Crown Mr. Merv Shaw, Q.C. For the Accused DECISION D. KOVATCH, J BACKGROUND [1] The accused, Edward John Berg, is charged that on November 10, 2014 he committed an assault upon Anna Berg with aweapon, a video game controller cord. The Crown proceeded summarily.

The sole issue is whether, applying the principles enunciatedin cases such as R v W.D. (1991), (SCC), 63 CCC (3d) 397 (SCC) and R v P.N.M. (1995), 141 SASK. R. 221 (CA), theCrown has proved the charge against the accused beyond a reasonable doubt.

THE EVIDENCE [ 2 ] The Crown immediately entered into a voir dire and called Constable Chris Flanagan of the Moose Jaw Police Service. He testified that on November 10, 2014, he received a report that a child was at the Moose Jaw Union Hospital, and that child was suffering from significant injuries. He began his investigation and obtained a number of photographs regarding the child and her injuries.

That photograph book was, by consent, entered as an exhibit on the trial. [ 3 ] Constable Flanagan also, as part of his investigation, obtained statements from the child’s mother, Rebecca Berg, and the child’s father, the accused Edward Berg. [ 4 ] Constable Flanagan testified that he contacted Mr. Berg at his place of employment, being the A & W in Moose Jaw. He asked Mr. Berg to provide a statement, and Mr. Berg agreed to do so. As a result, arrangements were made for the taking of that statement on November 13, 2014. Constable Flanagan picked up Mr.

Berg in an unmarked police vehicle and drove him to the police station. I need not go through all of the procedures taken before the commencement of the statement. At the conclusion of the voir dire , very experienced and able counsel for the accused, Mr. Shaw, conceded that the video taped statement was voluntarily given and was properly admissible in the trial proper. The evidence from the voir dire was applied to the trial proper.

The video taped statement obtained on November 13, 2014, was played in its entirety for the court. [ 5 ] Very early in the statement, the officer notes that the date is November 13, and the time is 3:55 p.m. The officer advised the accused of his Charter Rights , and provided the usual police warning. He obtained personal information about the accused. Mr. Berg advised that he was “a huge gamer”, meaning he liked to play video games. He advised that his daughter Anna, was born on June 26, 2013.

She would be about 16 or 17 months old at the time of this incident. [ 6 ] He further advised that on Sunday November 9, 2014, he noticed no injuries or bruises on Anna, and nothing was unusual about her. [ 7 ] On the morning of Monday November 10, his wife Rebecca got up with Anna. During this time, Mr. Berg continued sleeping. During this time, Rebecca bathed Anna, set her in the highchair, and gave her some breakfast. He stated that Rebecca came into the bedroom and advised that she was leaving for school. Rebecca left and he fell asleep for a period of time.

He awoke and realized that he had to get ready to go to work. He removed Anna from the highchair and put her in her crib, and he then proceeded to shower and get ready to go to work. He then decided to change Anna’s diaper and at that time noticed significant bruising. He said this bruise looked bad and was swelling up. He spoke of the evidence pointing toward him, and he was concerned about this. [ 8 ] Mr. Berg said he was required to be at work at about 11 AM. Prior to 11:00, the couples’ friend and babysitter Ms. Stephanie Lowey was coming to pick up Anna to care for her for the day.

He stated he was freaking out about this bruise, so he texted Stephanie to tell her about it. [ 9 ] Mr. Berg testified that within about a half hour Stephanie showed up. He stated that Anna was not upset when Stephanie showed up. He showed Stephanie the bruise on Anna’s thigh and told her that if it gets worse she should take Anna to the hospital. In his statement, he said that he then left for work. [ 10 ] During the course of the statement, Mr. Berg agrees that it looks like somebody hit Anna with an object. He is asked how these injures were incurred and he denies any knowledge.

He denies that he had anything to do with this. These denials occur more than once. [ 11 ] The officer spoke at some length to Mr. Berg about the frustrations and pressures of being a parent. He suggested to Mr. Berg that the accused became very frustrated, “and snapped”. After an initial denial of this scenario, Mr. Berg then agreed that was what happened. He said that he did not fall asleep after being awoken by Rebecca and her leaving to go to school. He said he began playing games. He spoke of how he has Asperger’s Syndrome and he can become very intense about such matters. Anna was crying and

crying. He attempted to comfort her but she would not be comforted, and continued to cry. He said he held the controller and the cord and he hit her with the controller. He stated that he felt “super bad” about it, and then put Anna in her crib and he proceeded to get ready for work. He said he never wanted to hurt Anna, and he tried to block it out of his memory and act as if it had never happened. [ 12 ] The next Crown witness called was Ms. Stephanie Lowey. She testified that she has known the accused for about 20 years, and known Rebecca Berg for about 3 years.

She regularly babysat other children and Anna Berg. She testified that on Monday November 10, 2014, she was to pick up Anna from the Berg’s home, at approximately 10:30 a.m. She said that as soon as she pulled up in front of the house and turned off her van she felt something might be wrong. From outside, and 20 feet away from the house, she could hear Anna crying very loudly, “just screaming.” She approached the house and Mr. Berg was holding Anna and waiting at the front door. Anna was crying very loudly. As Ms. Lowey approached, Anna immediately reached out to Ms. Lowey. Ms.

Lowey took Anna from her dad and Anna then stopped crying. [ 13 ] Ms. Lowey said that Mr. Berg was also quite upset. He lifted Anna’s shirt and showed a number of red marks on Anna. He did not show her the major bruise on her thigh. However, he did tell Stephanie that if it got worse, that she should take Anna to the hospital. [ 14 ] Ms. Lowey said that they were at the house for just a very short while. They left quite quickly. She drove Mr. Berg to the A & W, dropped him off and returned to her home. [ 15 ] Ms. Lowey testified that her boyfriend, Bill was at her home.

He was there often when she had babysat Anna, and Anna knew him fairly well. There was never the slightest of a problem between Anna and Bill. However, on this day, because Anna had been upset, Ms. Lowey carried Anna into the house, and set her in Bill’s lap. Anna immediately became very upset and began to cry loudly. She removed Anna from Bill, and gave Anna and the other children there some fruit and muffins. Perhaps about 45 minutes later, she removed Anna’s pants to check her diaper and noticed a large bruise on her thigh. [ 16 ] Ms.

Lowey said that she iced Anna’s leg and spoke to her boyfriend about what she should do. She took a number of pictures of injuries, which later appeared in the photo book before the Court. Ms Lowey said that she went to Rebecca’s school and met with Rebecca during her lunch break. She then took Anna to the hospital. The police and social workers came to the hospital. Ed did not come to the hospital. She testified that the next day, she confronted Rebecca and Ed together and asked them what happened. She testified that Ed was very upset and said he didn’t know what happened.

Further, Ed stated that he wouldn’t be able to prove he didn’t do it. [ 17 ] Under crosss-examination, Ms. Lowey testified that the bruising to Anna’s leg was getting worse, as the morning went on. Further, that Ed was very panicked and shaking when she approached the house and he passed Anna to her. [ 18 ] Rebecca Berg also testified. She testified that on November 10, 2014, she was living with Edward Berg and their daughter. On the morning of November 10, 2014, she got up, took a shower, woke Anna, and gave Anna a bath and breakfast. At this time she did not notice any bruising on Anna.

She put a shirt and diaper on Anna. Anna’s legs were fully exposed. Anna was in her highchair eating her breakfast, when Rebecca woke the accused, and she then left to go to school. Anna was very calm and not crying at all when Ms. Berg left to go to school at approximately 8:30. Later, Stephanie came to the school and showed her the pictures of Anna’s injuries. She was quite shocked by this and went to the hospital. [ 19 ] She testified that she was on Facebook, and that Edward Berg knew her Facebook account number and could access her account. Rebecca testified that her and Ed separated in January 2015.

She was shown a text message that she supposedly sent on February 19, 2015. She denied that she had anything to do with the preparation or posting of that text message. She was cross-examined about this, and agreed that it appears to be sent from her phone. However, she reiterated that she did not send it and did not know who did. [ 20 ] She also agreed with Mr. Shaw’s suggestions that at first, the police regarded her as a suspect. She advised that she did meet with Moose Jaw Police and provide a full statement.

She also advised that for a period of time following this incident, Anna was in the care of the Ministry of Social Services. Anna has since been returned to her care. She advised that she moved to Edmonton, and is living there with her mother and daughter.

[ 21 ] The Defense called Mr. David Morin as a witness. He testified that he has known Rebecca and the accused for a few years. In the past, he had communications with Rebecca via Facebook. He printed a number of those messages. It is of note that no messages were sent between the two of them between January 12, 2015 and July 21, 2015. He testified that on July 21, 2015 he received a message, supposedly from Rebecca Berg, that reads as follows: “sometimes I can’t control my anger. I was the one that hurt Anna and framed Ed because I knew I would be in big trouble.

I did threaten him and throw a chair at him once and got away with it. It will never happen again. Anyway don’t talk to me or respond to this. You are Ed’s friend not mine.” He said Rebecca unfriended him after that. [ 22 ] Under cross-examination, he agreed that this message appears to be in very different format than prior messages received. He agreed that there were no messages from January to July. He agreed that it was perhaps odd that months later she would send him an admission regarding framing.

He also agreed that if Ed or anybody else had the pass code they could put this message on the system. [ 23 ] Lastly, the accused, Edward Berg testified. He testified that he and Rebecca Berg have separated since this incident. He has a grade 12 education from Peacock High school in Moose Jaw. He testified that he suffers from ADHD, and Asperger’s Syndrome. From time to time he has been on medications for these problems. He could not say whether he was on any medications on November 10, 2014. He said that Asperger’s Syndrome will cause him to hyper focus on particular events.

He also testified about his gaming activities. [ 24 ] He testified that while he and Rebecca were together, she was on Facebook and he knew her password. He said he got the Facebook message from David Morin. He denied that he sent the message or instructed anybody to send that message. He denied that he had access to her phone to send the text message on February 19. He said he had never spoken to Rebecca about these messages. [ 25 ] Mr. Berg testified about the events of November 10, 2014. He said he wasn’t awake when Rebecca left for school. When he woke up Anna was in her highchair in the kitchen.

He said he did not know how long she had been there. He said he was frustrated that Rebecca just left Anna there. When he found her, Anna was simply playing and sitting in her highchair. He said that at that time, Anna was wearing a shirt and a diaper. He picked her out of the highchair and put her in the crib. He testified that he noticed no bruising at that time. He said he was still tired, and sat down on the couch and fell asleep for a good 45 minutes. When he woke up Anna was crying. He changed her diaper and put good clothes on her. At that time, he noticed a massive bruise on her side.

He said he freaked out and texted the babysitter. He told the babysitter that if it gets worse take her to the hospital. He said Stephanie attempted to calm him down. [ 26 ] Mr. Berg testified that when Stephanie arrived, Anna had been a little whiny. He picked her out of her crib because she had a messy diaper. [ 27 ] Mr. Berg testified that he knew he was under investigation and that he could be charged. He was thinking that he was in trouble. He testified he felt this was quite a normal response. [ 28 ] He denied that he caused the bruises to Anna.

He said he was feeling pressure from the police officer and that he made up a story to get matters over with. He said he was lying to the police when he told them that he had caused Anna’s injuries. [ 29 ] Under crosss-examination, he stated he could only guess what Rebecca did to cause the injuries. He said that she had been physically aggressive with him. He stated that he asked Rebecca a number of times what she did, and received no response. [ 30 ] He said he got the text message from Rebecca on February 19.

He did agree that this was well after he had already been charged and appeared in court. [ 31 ] He agreed that the pictures before the court were worse than the bruising that he initially noticed.

[ 32 ] He testified that he did not attempt to contact Rebecca after noticing the bruising. Also, that he did not go to hospital after work. He agreed these were mistakes. When asked about his lie to the police, he agreed it was an elaborate lie. He stated the police wanted details of how the incident occurred, and he gave them details. He also agreed that he told the police officer he felt better after providing the confession.

ANALYSIS AND DECISION [ 33 ] When one examines the pictures that were entered in evidence there can be no doubt that Anna Berg was the victim of a significant assault, that caused massive bruising to one thigh and other lacerations and marks on her body. Counsel made very little argument that the injuries could have been sustained in any other way, and all but conceded that the injuries could only have been incurred by an assault. The only real issue argued before the Court was whether the Crown had proved the accused’s guilt beyond a reasonable doubt. Both counsel referred the court to R v W.D. and R v P.N.M.

In the PNM case, Mr.

Justice Tallis summed up the WD instruction as follows: 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 evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

Other case law makes it clear that the process does not involve simply choosing between the accused’s evidence or some piece of the prosecution evidence. There must be a considered and reasoned basis for picking certain evidence over other evidence. The case law also makes it clear that the four questions, enunciated by Mr. Justice Tallis, are not water tight compartments. One person’s evidence is not considered in isolation, but in relation to the whole of the evidence. In addition, there may be considerable overlap.

As a result, reasons for rejecting some evidence may be closely related to or indeed the same reasons for acceptance of other evidence. [ 34 ] Having carefully reviewed all of the evidence, having reviewed the video statement provided by the accused on three separate occasions and having considered the arguments made by counsel, I find myself unable to accept any of the evidence presented by Edward Berg. I substantially accept the evidence of the Crown and have no reasonable doubt about this matter. Accordingly, I must find Mr. Berg guilty of the offence charged.

I reach this conclusion for the following reasons. [ 35 ] In the video taped statement, Mr. Berg admitted the assault, and admitted his guilt. In his evidence, he testified that he made up the story that he presented to Constable Flanagan because of pressure exerted upon him. He said he wanted to get matters over with. However, in watching the video statement, I do not see that any excessive pressure was applied by Constable Flanagan. To the contrary, the Constable was very low key and measured in his approach. He did not raise his voice or become aggressive with the accused.

It appeared to me he was being quite conciliatory and attempting to relate to and agree with Mr. Berg whenever possible. The statement, including a couple of breaks, ran from 3:55 p.m. until 5:17 p.m. This is not an overly long period of time, in relation to statements of this kind. In other words, there is no evidence that Constable Flanagan simply wore him down. The suggestion that an individual has physically assaulted and injured his own young child is normally so repulsive that it is met with vehement denials. In my view, Mr.

Berg didn’t make vehement denials, and relatively easily came around to admitting the offence and his guilt. [ 36 ] The evidence of Stephanie Lowey is very influential upon my decision. She clearly has done nothing wrong and has no particular stake in the outcome of these proceedings. She was the first person to become involved following the incident, and testified as to what she observed. She testified that Anna was very upset and “just screaming” when she arrived. She testified that Anna quickly settled down when she went to Stephanie.

Further, that as soon as she arrived at home, she handed Anna too her boyfriend Bill, and that Anna immediately again became very upset. Her evidence, taken as a whole, is inconsistent with Rebecca Berg having committed the

assault and is generally consistent with the offence having been committed by the accused. [ 37 ] There are number of smaller matters regarding the accused’s testimony that cause me to think that his evidence simply doesn’t make sense. He said he simply went to sleep while Anna was sitting in her highchair. Further, that he slept for a good 45 minutes. At the time of this incident this child was some 16 - 17 months old. The accused was the only one present to take care of her.

It makes no sense to me that he would go to sleep for 45 minutes and leave her virtually unattended during this time. [ 38 ] During the course of his statement and his evidence in-chief, Mr. Berg made a number of statements to the effect that “there was no conclusive proof”, the evidence pointed to him, he knew he was going to get into trouble and knew this would turn out bad for him. None of this makes any sense to me. Why would a parent, any parent, who had done nothing wrong and simply provided loving care for their child, be concerned that they were going to get into trouble.

It seems to me his concern was based upon his knowledge of the true state of affairs. [ 39 ] The defence theory that the mother, Rebecca Berg, caused these injuries on the morning of November 10 while the accused remained asleep is simply implausible. The accused would certainly have noted these injuries. More importantly, it is virtually impossible that these injuries could have been inflicted upon this young child., without this young child crying or screaming or making a lot of noise.

In other words, if the injuries had been inflicted by Rebecca Berg, the accused would most certainly have been awoken and heard matters during the course of the incident. [ 40 ] According to the evidence of Stephanie Lowey and the accused Edward Berg, when Ms. Lowey picked up Anna, Edward Berg told her that if the injuries get worse, she was to take Anna to the hospital. Why would the injuries be getting worse? Why would there be a need to take Anna to the hospital? It doesn’t seem to me that one would normally assume this. Again, it seems to me that Mr.

Berg knew the true state of affairs and was anticipating this would be necessary. [ 41 ] Why wouldn’t the accused have contacted Rebecca Berg to advise of the injuries? It would seem to be that was a pretty natural reaction. Natural, unless he didn’t want to report the matter to Rebecca Berg and answer questions from her about how this occurred. [ 42 ] Lastly, but certainly not least, the admission provided by Mr. Berg in the video taped statement is plausible. In the statement, he said that he has Asperger’s Syndrome and is a real gamer.

He said that the Asperger’s Syndrome causes him to be very intense about such matters. On the morning in question Anna was crying and crying and would not be comforted. He became very frustrated and hit her. Clearly that explanation is not excusable or justifiable, but it is in my view both logical and plausible. [ 43 ] For all of the above mentioned reasons, I am satisfied beyond a reasonable doubt that Edward Berg assaulted his daughter and find him guilty of the charge. Dated at the City of Moose Jaw, the Province of Saskatchewan this 18 th day of April 2016. _____________________ D. Kovatch J