Her Majesty the Queen - v. -, 2018 SKPC 075

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2018 SKPC 075 Date: December 12, 2018 Information: 991050301 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Beejay Ryan Bird Appearing: S. Fillo For the Crown T. Talbot For the Accused JUDGMENT M.M.

BANIAK , J [ 1 ] The accused stands charged as follows: 1) on or about the 3 rd day of May, 2018 at or near Saskatoon, Saskatchewan did commit an aggravated assault on Louis Prosper, contrary to section 268(1) of the Criminal Code ; and 2) on or about the 3 rd day of May, 2018 at or near Saskatoon, Saskatchewan in committing an assault on Donald McLeod, use a weapon, to wit: a knife, contrary to

section 267 (

a) of the Criminal Code .

[ 2 ] This trial was held on November 14, 2018, some six months after the alleged offences occurred. The accused, Mr. Bird, is charged with assaulting two individuals, a Mr. Louis Prosper and a Mr. Donald McLeod.

Unfortunately, neither of the complainants testified. [ 3 ] Probably the most useful evidence, at least in relation to the charge in count #1 of the Information, came via the video clips from a surveillance camera in the apartment building (Exhibit P-1). [ 4 ] The police testimony, from Constables Richard Erickson, Levi Davis and Scott Bertrand, dealt primarily with what they observed in the aftermath of the assaults – although Constable Davis testified that he saw Donald McLeod standing over the accused and kick him two times. [ 5 ] The only two other people who were present throughout the relevant time were the accused and Ms.

Taylor Isbister, both of whom testified. [ 6 ] It must be noted that the assessment of the evidence provided by Ms. Isbister and Mr. Bird has to be prefaced by the acknowledgment that both were impaired by alcohol. Ms. Isbister testified that she was intoxicated to a point where the police kept her in cells overnight. [ 7 ] A witness who is under the influence of mind-altering substances – whether alcohol or drugs, or a combination of both – is at a higher risk of providing reliable evidence.

The greater the impairment the less reliable is the evidence. [ 8 ] Secondly, as already mentioned, neither of the complainants testified. This left certain gaps that made the task of fact finding more difficult. [ 9 ] According to Ms. Isbister, the accused, Mr. Prosper and she were drinking that night. They went to visit her friend Meaghan. The three of them joined Meaghan and Donald McLeod and continued to drink. At some point they were asked to, or decided to, leave. They proceeded to the apartment where the accused and Donald McLeod lived. She, Mr.

Prosper and the accused had some more drinks at the accused’s apartment. [ 10 ] At some point Mr. Prosper decided to leave the accused’s apartment and wanted Ms. Isbister to come with him. She did not want to go as she had decided to spend the night with the accused. [ 11 ] With respect to the altercation, Ms. Isbister testified that the accused started the fight with Mr. Prosper and then Donald McLeod joined in delivering kicks and punches to Mr. Prosper who was already on the floor. [ 12 ] She described Mr. Prosper as being bloody.

She believed that his jaw was broken and he was bleeding from the mouth. [ 13 ] Her ability to describe the unfolding events in sequence was compromised as she readily admitted that she remembered the whole thing in spots. Some things she had no recollection of and she told the police that she did not remember what happened. [ 14 ] In any event, she testified that the accused, Mr. Prosper and herself took the elevator to the lobby. She didn’t know where Mr. McLeod went. When she did see him, she did not observe any blood on him.

She testified that she saw Donald McLeod with a knife in the hallway, but she had no recollection of what happened in the dark spot out of the camera range in the vicinity of the elevator. [ 15 ] Mr. Bird testified. According to him, Ms. Isbister and Mr. Prosper picked him up around 1 or 2:00 a.m. and the three of them went to a Meaghan’s place. Meaghan and Donald McLeod, who was Mr. Bird’s roommate, were already drinking. He described Mr. McDonald as a big man – about 6’2” as opposed to his 5’7” and 154 pound frame.

[ 16 ] He described Mr. McLeod that day as being angry and aggressive. [ 17 ] Once at Mr. Bird’s place, the trio continued drinking. According to Mr. Bird, “Taylor and Louis were guzzling”; while he may have had five or six shots at his apartment. [ 18 ] Things turned for the worse when Mr. Prosper wanted to leave and take Ms. Isbister, who did not want to go with him. [ 19 ] He admits to taking the first swing at Mr. Prosper, but then Mr. McLeod, who came out of nowhere, proceeded to punch and kick Mr. Prosper repeatedly. [ 20 ] Trying to diffuse the situation, Mr. Bird decided that it was best that Ms.

Isbister and Mr. Prosper leave. He decided to escort them to the elevator and outside. [ 21 ] According to him, Mr. McLeod tried to prevent this: Don tried to lunge at me. I had the knife blade. Don had the folding knife. Donald tried to grab me as I was trying to leave. He was grabbing my neck . . . when Donald had his hands on my neck I thought I was going to die. [ 22 ] Nis next recollection was being attacked by Mr. McLeod again: Don grabs me and tries to choke me. Then it’s sort of a blur. I was getting beaten up. I was getting kicked in the head. There was a cop there.

He saved me. [ 23 ] During cross-examination, Mr. Bird acknowledged punching Mr. Prosper and delivering a couple of kicks, he took the position that the kicks were directed towards the body and that they didn’t really connect: “I tried to kick him, but I missed him.” [ 24 ] He testified that he slashed McLeod in order to loosen the latter’s grip around his neck. He did so in order to defend himself. “I swung at McLeod just once . . .

I was not the aggressor, I was defending myself . . . it all happened so fast.” [ 25 ] He did not know why McLeod did not follow the three of them into the elevator, but recalls being attacked by him in the foyer. Position of the Parties [ 26 ] Defence submits that there is simply no evidence that the assault on Mr. Prosper amounted to aggravated assault. Mr. Bird’s actions may have amounted to nothing more than simple assault. [ 27 ] Secondly, as it relates to the second count, the evidence suggests that Mr. Bird was genuinely fearful for his life when he was being choked by Mr. McLeod.

There is an “air of reality” to his claim of self-defence. [ 28 ] Crown takes the position that this was a serious assault. Therefore, even if all of the elements outlined in s. 268 of the Criminal Code are not proven it still amounts to an assault causing bodily harm in s. 267 (

b) which is an included offence. [ 29 ] Insofar as the claim of self-defence is concerned, the Crown argues that it does not have an air of reality to it. The accused’s memory was selective, and his testimony overall was self-serving and not credible.

Analysis [30] Section 265(1)(

a) of the Criminal Code states as follows: A person commits an assault when (

a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly . . . [31] There are different categories or variants of assault. [32]

Section 266 of the Criminal Code addresses the offence of common assault (generally viewed as the least serious of assaults);section 267 deals with an assault with a weapon or an assault causing bodily harm; and

section 268 deals with aggravated assault. [33] Section 268(1) reads as follows: Everyone commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant. [34] As the Supreme Court of Canada held in R v Godin, (SCC), [1994] 2 SCR 484, 89 CCC (3d) 574, the mensrea of this offence is objective foresight of bodily harm, and does not require proof of an intent to wound, maim, disfigure or endanger. [35] The issue to determine with respect to count #1 is whether this was an assault and, if it was an assault, was it aggravatedassault? [36] Both the accused and Mr.

McLeod assaulted Mr. Prosper. The video evidence clearly shows Mr. Prosper being punched byMr. Bird. The blow staggers Mr. Prosper and he backs against the wall. Once Mr. McLeod jumps on Mr. Prosper and proceeds topummel him with his fist, Mr. Bird directs a couple of kicks towards Mr. Prosper. [37] I find that both Mr. Bird and Mr. McLeod assaulted Mr. Prosper. I also find that the assault injured Mr. Prosper, it was not anassault of the simpliciter variety. Was this an aggravated assault? [38] It is unfortunate that Mr. Prosper did not testify.

That, coupled with the lack of medical evidence, either by way of a medicalreport or viva voce evidence, makes it difficult to ascertain the gravity of the injury. He was bleeding, he required medical attention, andMs. Isbister believed that his jaw may have been broken. Constable Bertrand went to see Mr. Prosper in the hospital later that morningbut was unable to speak with him as Mr. Prosper apparently suffered a seizure. [39] I have no evidence before me that the accused wounded the complainant.

Not being able to see the complainant from closeproximity, or hear his testimony, I cannot conclude that he was disfigured. [40] The accused may have endangered the complainant. Anytime a hard blow is directed at an unsuspecting individual,particularly to the head area, it exposes that individual to serious injury and, therefore, endangers his life. However, having regard to allof the evidence, including the fact that Mr. Prosper was able to leave the apartment together with the accused and Ms.

Isbister withouttheir assistance (especially having regard to the level of his intoxication); the lack of evidence on this point from the attending policeofficers; the lack of medical evidence, all lead me to have doubt that Mr. Prosper’s life was endangered. [41] That, then, leaves the question of whether the accused maimed the complainant.

[ 42 ] The Oxford English Dictionary defines maim as: “to injure someone so that part of the body is damaged.” [ 43 ] Case law assists us insofar as suggesting what constitutes an injury severe enough to qualify as aggravated assault, and secondly, whether the injury or damage need be permanent. [ 44 ] The Alberta Court of Queen’s Bench in the case of R v Dosser , 2009 ABQB 617 , found the accused guilty of aggravated assault on the basis of maiming the complainant (a fracture of a child’s right femur) and stated as follows: There is no evidence that Preston’s injuries are permanent.

But apparently a maim can include an injury that is not permanent, and only temporarily deprives the victim of the use of a part of his body, such as a broken bone . . . (para 13) [ 45 ] Our Court of Queen’s Bench in R v Whitford , 2012 SKQB 489 , held that a broken clavicle, which required surgery, and which kept the complainant off work for four and one-half months amounted to aggravated assault by maiming. [ 46 ] In the instant case, there is no conclusive evidence that the complainant suffered any broken bones. There is no evidence as to the length of his hospitalization.

There is no evidence if his injury kept him off work. There is no evidence that the assault had any permanent or even prolonged physical or mental impairment. [ 47 ] On the whole, therefore, I find that the evidence which I do accept does not establish the offence of aggravated assault. That being said, based on the evidence which I do accept, this was a serious assault which caused bodily harm to Mr. Prosper. I find the accused guilty of the included offence of assault causing bodily harm as per s. 267 (

b) of the Criminal Code . Can the accused claim self-defence with respect to the charge contained in count #2 of the Information? [ 48 ]

Section 34 of the Criminal Code says: 34

(1) A person is not guilty of an offence if (

a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person; (

b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and (

c) the act committed is reasonable in the circumstances.

(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors: (

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 use of 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 force and 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. (3) Subsection (1) does not apply if the force is used or threatened by another person for the purpose of doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully.

[ 49 ] This

section incorporates a subjective and objective test. It is not enough that the accused believed that he was in danger. That belief must be based on reasonable grounds. [ 50 ] Subsection 1 requires that three basic conditions be met before an accused can successfully argue self-defence. [ 51 ] Firstly, he must believe on reasonable grounds that force is being used against him. Secondly his defensive action is committed for the purpose of defending or protecting himself.

Thirdly, the accused’s act must be reasonable having regard to the circumstances. [ 52 ] Subsection 2 places on the trier of fact a list of conditions that must be considered in determining whether the accused’s action, such as the amount of force used, was reasonable. [ 53 ] All levels of Court have held that self-defence has to have an air of reality to it. [ 54 ] First, you have to be in danger; second, you are unable by using reasonable means to extricate yourself from that peril, and third, the force employed has to be reasonable and proportional to the danger or threat posed. [ 55 ] Here, Mr.

Bird admits that he slashed Mr. McLeod with the knife, but claims that this was a defensive action. He testified that Mr. McLeod had his hand around his throat and he feared for his life. [ 56 ] I have some reservation about Mr. Bird’s testimony on this point as this portion of the encounter was not captured by the surveillance camera. [ 57 ] However, I cannot dismiss it out of hand. [ 58 ] From the testimony of Ms. Isbister and Mr. Bird and Constable Davis, and from watching videos, it is clear that Mr. McLeod is predisposed towards violence especially when he is drinking. Mr. Bird testified that Mr.

McLeod has a history of violence. [ 59 ] Mr. McLeod is a big man and it is plausible that Mr. Bird genuinely feared for his safety, if not his life. His belief, I believe, having regard to all the circumstances, was reasonable. [ 60 ] It is noteworthy that Mr. Bird did not employ more force than was necessary. After the initial slash he retreated into the elevator and did not slash, stab or employ any other force against McLeod. The damage or injury to Mr. McLeod is unclear. However, it did not incapacitate him. He followed Mr. Bird into the foyer and proceeded to assault him. The video showed Mr.

McLeod on top of Mr. Bird delivering blows. Constable Davis testified that when he arrived on the scene Mr. Bird was on the floor and Mr. McLeod was standing over him. Constable Davis also observed Mr. McLeod kick Mr. Bird at least a couple of times. Mr. McLeod was initially arrested and handcuffed. This would suggest that his injury was not serious. [ 61 ] The playback of the video showing Mr. McLeod’s assault on Mr. Bird caused him to tear up and tremble.

He was clearly unnerved by it and it re-traumatized him some six months later. [ 62 ] Having regard to all of the above, I find that the slash to the head/face area of Donald McLeod was defensive in nature. It was meant to free himself from the choking grasp of Mr. McLeod and remove himself from the scene. It was reasonable and not extreme. It employed only as much force as was required. Mr. Bird was acting in self-defence.

[ 63 ] I find him not guilty of Count #2 of the Information. _____________________ M.M. Baniak, J