R. v. W., 2015 MBPC 9

Cite # 2015 MBPC 9 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) P. Miniely for the Crown ) - and – ) ) Desiree Rockhill ) M. Zurbuchen for the Accused ) ) Judgment delivered: February 24, 2015 DEVINE, P.J. Introduction [1] Ms. Rockhill was charged with Assault and Assault Cause Bodily Harm on Julia Neufeld which were alleged to have occurredon August 25, 2012 in Altona, Manitoba. Several civilian witnesses and one police officer testified at the trial.

Because some of thosewitnesses were called by the defence, and some of the facts were at issue, I have also had to make findings of credibility of thewitnesses’ testimony and determine its reliability. I have done so with regard to the test set out by the Supreme Court of Canada in R. v.W.(D.), (SCC), [1991] 1 S.C.R. 742 and by considering each of the witnesses’ testimony in the context of all the trialevidence according to the Manitoba Court of Appeal in R. v. Menow, 2013 MBCA 72. [2] The facts are simple.

The Crown case is that Julia Neufeld was in the washroom at the bar, had an innocent exchange ofwords with one of Ms. Rockhill’s group and then back in the bar, Ms. Rockhill attacked her, unprovoked, hitting her and pulling clumpsof her hair out. [3] The defence case is that the exchange in the washroom was not innocent. Ms. Neufeld or another woman in her group madean offensive, racist remark about Aboriginal women to the women, who are Aboriginal, and when confronted about it in the bar, sheengaged in a consensual fight, or Ms. Rockhill honestly believed that it was a consensual fight.

Although it is acknowledged that Ms.Neufeld’s hair was pulled, the defence says there was no intention by Ms. Rockhill to cause her serious bodily harm. [4] The first issue to resolve in this case is whether the physical altercation between the Accused and Julia Neufeld wasconsensual or whether it was not, in which case it was an assault.

Even if Julia Neufeld was not actually consenting to fight, if there isevidence reasonably capable of supporting the inference that the Accused believed her to be consenting, there can be no conviction forassault. [5] It is not argued that there were actual words of consent such as those in the leading case of R. v. Paice, 2005 SCC 22, wherethe complainant challenged the accused to go outside the bar and have a fight.

It is likely that behavior and body language couldconstitute consent in a situation such as this, but I do not have to decide whether Julia Neufeld actually consented to fight with DesireeRockhill, because I am satisfied that the Accused believed that she consented. [6] It is common ground that Ms. Neufeld and her girlfriends were in the bathroom first. Then Ms. Rockhill and her friends cameinto the bathroom. The Accused’s friend Melissa Hourie accused someone in Ms. Neufeld’s group of not flushing the toilet. At thattime, all Ms Rockhill’s group was in the stalls. One of Ms.

Neufeld’s group then allegedly said something extremely racist andderogatory, “I know how to flush a toilet, you dirty, Native c---.” It should be noted that Ms. Rockhill and Ms. Hourie are Aboriginalwomen. They testified to being shocked and insulted. Ms. Neufeld denied that she said these words. [7] I accept that the words were said, based on all the evidence. First, the evidence of Ms. Hourie struck me as credible. She hasworked for 13 years at the CRA and has a lot to lose. She was not argumentative. She was not defensive. She agreed that her memorywas affected by the passage of time and perhaps alcohol.

She agreed that no one said, “Let’s have a fight” or that leaving the washroomwas the action of someone looking for a fight. But she remembered clearly the comment and how it made her feel and her evidence onthat was believable and detailed. She said the words were spoken in a rude, snobby tone and she then heard the Accused, Ms. Rockhill,say “Whaaat?” in a tone of disbelief. She said she felt angry. [8] Ms. Rockhill also testified that after Ms.

Hourie made the comment about not flushing, one of the girls outside the stalls said,“I know how to flush the toilet you Native c- - - .” She said she was shocked, asking herself if someone actually said that. She said shewas insulted, she thought it was disrespectful and the tone was ignorant. This accords very closely to the evidence of Ms. Hourie. Herevidence that she had some disbelief is consistent with Ms. Hourie’s evidence that she heard Ms. Rockhill query “Whaaaat?” I note thatneither Ms. Rockhill nor Ms. Hourie attributed the comment to Ms.

Neufeld, which they could have, if they wished to strengthen thedefence case. I accept the evidence of Ms. Rockhill. She presented as a credible, somewhat embarrassed witness.

[ 9 ] Ms. Neufeld denied making the comment. She said that all she said was that she flushed the toilet and then she walked out. [ 10 ] It is common ground that after this, Ms. Neufeld left the washroom and stood at the bar with her friends to order a drink. Ms. Rockhill and Ms. Hourie left the washroom and Ms. Rockhill asked Ms. Neufeld’s group who made the comment in the bathroom, “Who was the cheeky b---- beaking off in the bathroom?” or words to that effect, according to several of the witnesses. [ 11 ] Ms.

Hourie testified that when the Accused asked who had the big mouth in the bathroom, Julia Neufeld stepped forward, with kind of confrontational body language, hand on her hip, probably agitated, and said, “That would be me.” Ms. Rockhill testified that she asked “who was the cheeky b----- who had made the comment in the bathroom”. One of the girls, who we now know was Julia Neufeld, turned around and stepped forward, saying, “Well, that would be me!” in a loud tone, taking responsibility for the comment, with ignorance in her tone, a little defensive and confrontational.

Then there was a lot of bickering back and forth. Ms. Rockhill said she felt a little intimidated, because it was just her and Melissa (Hourie), while there were four of them, including Ms. Neufeld. She said she might have shoved the complainant. She admitted she made contact first, hitting Ms. Neufeld in the upper chest. She said that Ms. Neufeld came back at her and they went to the ground. She characterized it as a fight with both of them pulling each other’s hair.

They were separated. [ 12 ] Although he did not hear the words spoken between the women, and Julia Neufeld had her back to him, Cornelius Peters testified that after the women came out of the washroom, there was name calling back and forth and then a fight broke out between Ms. Rockhill and Ms. Neufeld. [ 13 ] Ms. Neufeld stated that when she heard Ms. Rockhill ask “Who was the cheeky bitch who was beaking us in the bathroom?” she turned around and said, kind of goofily, “Oh! That would’ve been me,” because she was the only other person in there besides Meagan. Then Ms.

Rockhill walked two steps quickly towards her and hit her twice on the head with both hands. The pose described by Ms. Hourie in her evidence was very similar to how the complainant said she kind of said, “Oh, that would be me,” with a hand on or near her hip. Taylor Nickel, who had not been in the washroom, testified that Ms. Rockhill came out asking, “Who’s the cheeky bitch in the washroom?” Then Ms. Neufeld turned around and said, “Oh, I was in the washroom” and then Ms. Rockhill hit her, specifically, she “threw a punch” at Ms. Neufeld. [ 14 ] It is clear from all the evidence that Ms.

Rockhill did not know who made the racist comment in the bathroom until Julia Neufeld took credit for it. [ 15 ] My finding that the racist comment was made is strengthened by the evidence that Ms. Rockhill came out of the bathroom and immediately confronted Ms. Neufeld’s group about it. Ms. Neufeld’s evidence that she had just said she flushed the toilet is not plausible in light of Ms. Rockhill’s behavior and words when she came out of the bathroom. She was not looking for the woman who said she flushed the toilet; she was looking for the woman who made a derogatory, racist slur.

That accords with the evidence of all the witnesses. [ 16 ] I believe that Ms. Rockhill believed Julia Neufeld was consenting to a fight. Whether or not she made the ugly, derogatory and racist comment in the bathroom, Ms. Neufeld came forward and boldly accepted responsibility for it, and in her words, tone and body language, challenged Ms. Rockhill to fight. In effect, she was saying, “What are you going to do about it?” [ 17 ] Not only did Ms. Rockhill believe that Ms.

Neufeld was consenting to fight her at that moment, the totality of the evidence in the trial supports that this was a consensual fight and not an assault. All the witnesses except for Julia Neufeld characterized this as a fight, and not an assault, including Taylor Nickel. The police were dispatched to a fight to the hotel. The bartender described a fight: with yelling, screaming and hair pulling, both of the women trying to get at each other and onlookers trying to get them apart. Taylor Nickel characterized it as the Accused trying to pick a fight with Ms.

Neufeld, but then went on to describe a fight, not an attack, with evidence that when the two women were exhausted, the Accused tried to continue the “fight” and she described a scene that sounded more like a melee, with several people involved, including her, trying to pull a girl off Julia. Overall, the evidence was of a classic barroom brawl; with the bartender calling the police about a bar fight. [ 18 ] Generally, I have difficulty with Ms. Neufeld’s testimony. Her evidence at trial was inconsistent with the statement she gave to the police, and it was inconsistent with that of other witnesses.

I have already decided I do not believe that she did not make the racist comment. [ 19 ] She told the police initially that the Accused hit her, but then described the Accused and her friends grabbing her hair, yanking her hair and punching her and throwing her on the floor and then all three of them kicking her in the head. At trial, she confined the assault largely to the Accused and confined her testimony largely to the Accused grabbing her by the hair and not letting go.

The original statement does not accord with the photos of the injuries, which would have been much more serious if three adult women had been kicking her in the head. While her statement to police involved three women, she could not tell who was doing what and her head was covered most of the time in any event. At trial, she testified that the Accused hit her, grabbed her by the hair and ripped it violently, and that the Accused pulled her to the ground and that the Accused and Mavis were kicking her. [ 20 ] She testified that this attack continued until the police arrived. However, Cpl.

Defer testified that when he arrived, Ms. Rockhill was sitting on the floor near the vendor. He witnessed no fight. It was already over. [ 21 ] She said the police came and spoke to her. That is not the evidence from Cpl. Defer. He testified that Ms. Neufeld approached him, saying, “Look what she did,” and held up some hair. He said he spoke to her just briefly, in the door. It was Cornelius Peters who told him that the Accused had been in an altercation with Ms. Neufeld. There was no information he spoke any further with her that night. She testified that Taylor Nickel got kicked. Ms.

Nickel did not testify to this. She said her friend Meagan was also in the bathroom and was a witness to her not saying a derogatory, racial slur, but Meagan did not testify. [ 22 ] She said she said nothing to the Accused after the Accused hit her, which is inconsistent with the evidence of Mr. Peters who said there was yelling and screaming. And also inconsistent with the evidence of Melissa Hourie, who testified that there was name calling back and forth between the Accused and Ms. Neufeld.

[23] I find therefore this was a consensual fight. That decides the simple assault charge. There must be an acquittal on that charge. [24] In the case of the bodily harm charge, the Crown argued that this was not a consensual fight, but even if it was, the consent wasvitiated because the injury caused to Ms. Neufeld constituted serious bodily harm within the meaning of the law. In law, consent isvitiated when during an otherwise consensual fight, a person is caused serious bodily harm and there was intent to cause serious bodilyharm. [25] The leading case on “serious bodily harm” is R. v.

McGraw, (SCC), [1991] 3 S.C.R. 72. Ms. Neufeld testifiedthat her scalp was sore and showering was incredibly painful for two weeks. She said it was very painful to brush her hair for about amonth. She says the hair does not grow the way it used to, it is not as thick and she cannot grow it out. A patch on the left side has notfilled out. She was always proud of her hair and now it is not the same. Emotionally, she says she is somewhat a social introvert. Shedoes not go to bars anymore, as she is fearful of those places and of strangers.

She is angry that a stranger came into her home townwhere she had always felt safe. While I can accept that the amount of hair pulled from Ms. Neufeld’s head was significant, and it has hadboth physical and psychological consequences for her, the injury constitutes bodily harm, not serious bodily harm. Bodily harm istypically an injury that will last a week or two weeks, such as bruising, pain, discomfort. It rises above the pain and discomfort onemight get from an assault simpliciter. Serious bodily harm is the third step up, as it were. Something more long lasting than a fewweeks is to be expected.

And it must be serious harm or substantial harm, whether that is serious or substantial physical harm or seriousor substantial psychological harm. The injuries to Ms. Neufeld do not rise to that level of harm. [26] Moreover, even if there was serious bodily harm, the Crown also has to prove that Ms. Rockhill intended to cause serious bodilyharm.

It is open to the Court to make a presumption that an accused intended the consequences of their act on the basis of all theevidence, as stated by Justice Branca of the British Columbia Court of Appeal in Brent: That a person intends the natural consequences of his acts is not a presumption of law but of ordinary good sense. If a person is able toforesee the natural consequences of his acts, then as a rule, it is reasonable to infer he foresaw and intended them. (R. v.

Brent (1972), (BC CA), 7 C.C.C. (2d) 232 (BCCA)) [27] In this case, I do not accept that the long term consequences of the hair pulling were natural. I do not think anyone would haveforeseen that Ms. Neufeld would still have a bald spot on her scalp and hair that does not grow the same in that spot on her head aconsiderable time later. And, as I indicated above, I do not find that this was “serious” bodily harm in any event. [28] Consequently, the Crown has not proven beyond a reasonable doubt that Ms. Rockhill committed an assault or an assaultcausing bodily harm.

Desiree Rockhill is acquitted of both charges. “Original signed by” Devine, P.J.